ABDUL REHMAN Versus MUHAMMAD MUSHTAQ alias MAKHA
MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J .--This appeal is directed against the judgment of the Shariat Court dated 25-2-2005, whereby death sentence, under section 17(4) of the Offences Against Property (Enforcement of Hudood) Act, 1985 along with simple imprisonment for one month under section 341 A.P.C. and two years' simple imprisonment under section 13 of the Arms Act, 1965 awarded to the respondent was set aside and sentence of ten years' rigorous imprisonment under section 392, A.P.C. and a fine of Rs.50,000 was awarded to the respondent.
2. Briefly stated the prosecution case, as unfolded in the F.I.R., is that on 20-2-2002, Abdur Rehman, complainant, moved an application before the S.H.O. police station Barnala, that on 20-2-2002, he along with his mother, Mst. Hamida Bibi, sister Mst. Asia Bibi and aunt Mst. Said Begum, was going to Chak Salma for the condolence on a death. At about 10-00 a.m. when they reached Pir Saroba near Salma Matta, Muhammad Mushtaq alias Makha, a proclaimed offender, was standing in the way. He attempted to snatch the ornaments from his mother, upon which they resisted. He fired a bullet from 222 bore gun at his mother with the intention to kill her. The fire hit on the front of the neck of his mother. She fell down and succumbed to the injuries. The accused ran away. This occurrence was witnessed by Mst. Asia Bibi, Mst. Said Bibi, Muhammad Ashraf and Muhammad Bashir. On this application of the complainant a case under section 17(4) of the Offences against Property (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as E.H.A.) and section 341, A.P.C. was registered by P.W.15, Muhammad Mehrban, A.S.I. Police Station Barnala.
3. After the registration of case Muhammad Mehrban, A.S.I., P.W.15, proceeded to the spot. He prepared inquest report, Exh.P.F. He recovered blood-stained clay in presence of P.W.6, Muhammad Latif, and P.W.7, Muhammad Ilyas, and sealed it into a parcel. He prepared recovery memo. Exh.PC, in presence of both the aforesaid prosecution witnesses. He recovered an empty of 222 bore gun from the place of occurrence. He sealed it into a parcel in presence of P.W.6, Muhammad Latif, and P.W.7, Muhammad Ilyas. He prepared recovery memo. Exh.PD. He recovered the clothes of deceased Mst. Hamida Bibi which were handed over to him by C.M.O. Barnala in presence of P.W.6, Muhammad Latif, and P.W.7, Muhammad Ilyas. He sealed the clothes into a parcel and prepared a recovery memo. Exh.PE.
4. On 29-3-2002, P.W.19, Mirza Zahid Hussain, Inspector S.H.O., Police Station Barnala recovered 222 bore gun at the instance of Muhammad Mushtaq alias Makha, during his arrest along with 73 live bullets and prepared a recovery memo. In presence of P.W.8, Muhammad Hanif and Muhammad Hussain, P.W.9. The dead body was sent to the hospital for post-mortem. Dr. Muhammad Anwar, P.W.11, conducted the post-mortem.
5. Blood-stained clothes of the deceased and clay were sent to the Chemical Examiner. According to his report these articles were stained with blood. P. W.10, Khrushid Ahmad Patwari, prepared the site plan. The gun and the empty recovered from the spot were sent to Fire-arm Expert. After completion of investigation, the challan was submitted before the District Criminal Court, Bhimber. After conclusion of trial, the said Court found the respondent guilty and awarded him death sentence under section 17(4) of the E.H.A., one month's imprisonment under section 341, A.P.C. and two years' imprisonment under section 13 of the Arms Act, 1965.
6. Feeling aggrieved from the said judgment, respondent filed an appeal in the Shariat Court of Azad Jammu and Kashmir. A Division Bench of the Shariat Court converted the sentence of death into sentence of 10 years' imprisonment under section 392, A.P.C. Now the instant appeal has been filed against the judgment of the Shariat Court for enhancement of sentence of-the respondent.
7. Ch. Ali Muhammad, the learned counsel for the appellant (complainant), argued that the learned Judges of the Shariat Court have' wrongly held that the proof as required under section 7 of the E.H.A. was not available. He further submitted that section 392 only deals with robbery, while in the present case a person has been murdered during the commission of offence of robbery therefore it was not simply a case of robbery. It was next contended by the learned counsel that the learned Judges of the Shariat Court have wrongly discarded the evidence of eye-witnesses Abdul Rehman, Muhammad Ashraf and Muhammad Bashir. He read the evidence of aforesaid witnesses and submitted that there is complete unison among these witnesses that Mst. Hamida Bibi was murdered by Muhammad Mushtaq alias Makha. He further submitted that the learned Judges of the Shariat Court took the case lightly and did not consider the remaining evidence and simply after discarding the evidence of three male eye-witnesses, without any reasonable justification, converted the sentence of death into a sentence under section 392, A.P.C. He submitted that in the instant case the gun was recovered at the instance of respondent and the recovery of weapon of offence was proved by the witnesses of recovery. This gun along with the empty recovered from the place of occurrence was sent to the Firearm Expert. According to the Fire-arm Expert this empty was fired from the said gun. The story of the prosecution finds corroboration from the post-mortem report, but the learned Judges of the Shariat Court did not even consider this evidence. Neither this evidence was rejected nor it was considered therefore the judgment of the Shariat Court is not sustainable. He submitted that the learned Shariat Court took the case very lightly. He contended that the case is fully proved from the evidence of eye-witnesses, post-mortem report, recovered articles and report of the Fire-arm Expert, therefore, the trial Court has rightly awarded the sentence under section 17(4) E.H.A. There was no justification for interference in it but the learned Shariat Court has wrongly converted the sentence into a sentence of robbery under section 392, A.P.C. The judgment of the learned Shariat Court is against the evidence. He submitted that the respondent committed the murder of a woman only for ornaments. It was next submitted by the learned counsel that the respondent has committed another murder in which too capital sentence has been awarded to him by the lower Courts. The respondent is a habitual dacoit, therefore, he does not deserve for any leniency.
8. While controverting the arguments of the learned counsel for the appellant, Raja Mazhar Iqbal, the learned counsel for the respondent, argued that the judgment of the Shariat Court is based on sound, cogent and sagacious reasoning. It does not require any indulgence by this Court. He submitted that the presence of Abdul Rehman, Muhammad Ashraf and Muhammad Bashir was doubtful at the place of occurrence. They reached after the accused had run away from the place of occurrence. Therefore, they have not witnessed the occurrence and as such was rightly held by the Shariat Court. The learned counsel further maintained that the prosecution has failed to prove the case beyond any reasonable doubt. While emphasizing on the said point he submitted that no ornaments were recovered by the police from the place of occurrence or from the body of the deceased. Therefore, the story of the prosecution is not free from doubt.
9. The learned Additional Advocate General owned the arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties, perused the record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. In the instant case Abdul Rehman, Asia Bibi, Mst. Said Begum, Muhammad Ashraf and Muhammad Bashir were cited as eye-witnesses in the challan. They appeared before the Court and deposed that they have witnessed the occurrence. Abdul Rehman, P.W. stated that on 20-2-2002 he along with his mother Mst. Hamida Bibi, sister Asia Bibi and aunt Mst. Said Begum was going for condolence to Slama Matta. At 10-00 a.m. Muhammad Mushtaq alias Makha son of Mehdi Khan, (who was a proclaimed offender) appeared with a .222 bore gun and blocked the way. He attempted to snatch the ornaments from the mother, Mst Hamida Bibi. They resisted upon which Muhammad Mushtaq fired a bullet from 222 bore gun on Mst. Hamida Bibi. The bullet hit on her front side of neck. She fell down and died on the spot. The accused ran away. This occurrence was witnessed by sister Asia Bibi, aunt Said Begum, Muhammad Bashir son of Sher Muhammad and Muhammad Ashraf Khan son of Khan Muhammad.
11. Muhammad Ashraf, P.W.4, appeared as a witness and deposed that on 20-2-2002 he and Muhammad Bashir went to the forest for bringing the wood. They were cutting the woods. At 10-00 a.m. they heard the sound of two fires. They went on the place of occurrence and saw Mst. Hamida Bibi, who had died. These bullets were fired by Muhammad Mushtaq. He fired bullets from 222 bore gun. At that time Asia Bibi, Abdul Rehman, Said Begum and Muhammad Bashir were also there. After the firing the accused ran away towards east side. The fire, hit on the neck of Mst. Hamida. He further stated that he had witnessed the occurrence with his own eyes.
12. Muhammad Bashir, P.W. 5 appeared and stated that on 20-2-2002 he along with Muhammad Ashraf had gone to forest for bringing the wood. They heard the sound of fire and went towards that side. They saw Muhammad Mushtaq armed with 222 bore gun. He had blocked the way of Mst. Hamida Bibi, Abdul Rehman, Asia and Said Bibi. He was trying to snatch the ornaments from Hamida Bibi. She resisted upon which the accused Muhammad Mushtaq fired a bullet from his 222 bore gun. The bullet hit on the front side of neck of Hamida Bibi and she died on the place of occurrence. Muhammad Mushtaq alias Makha ran away from the place of occurrence. This occurrence was witnessed by Muhammad Ashraf, Abdul Rehman, Said Begum and Asia Bibi.
13. Mst. Asia Bibi, P.W.2, appeared as a witness on 9-4-2003. She deposed that on 20-2-2002 she along with her mother, aunt Said Begum, brother Abdul Rehman, was going to Salina Matta for condolence. In the way the accused appeared, who had already committed a murder. He was armed with 222 bore gun. He tried to snatch the ornaments from her mother. They resisted and made a noise. In the meanwhile the brother came back and two other persons also witnessed the occurrence, name of one of them was Ashraf and the other was Bashir. The mother died on the place of occurrence and the accused ran away from the place of occurrence.
14. Mst. Said Begum appeared as a witness. She stated that on 20-2-2002 she along with her brother Abdul Rehman, Asia Bibi and Hamida Bibi was going to Salma Matta for condolence. At 10,00 a.m. they reached Peer Saroba forest. The accused Muhammad Mushtaq appeared. He fired a bullet at Hamida Bibi and tried to snatch the ornaments. He fired two bullets from the gun out of which one hit on the neck of Hamida Bibi, who died on the place of occurrence. This occurrence was witnesses by Muhammad Ashraf and Muhammad Bashir. ?
15. Out of aforesaid five witnesses, Mst. Asia and Mst. Said Begum, are female while the other three are male. They clearly deposed that they have witnessed the occurrence but the learned Shariat Court has held that they have not seen the occurrence. The learned Judges of the Shariat Court held as under:
"Mst. Said Bibi has categorically deposed during cross-examination that the accused had gone away from the place of occurrence before the arrival of P.Ws. Abdul Rehman, Muhammad Ashraf and Muhammad Bashir."
It was further held by the Shariat Court that:--
"It was also stated by. P.W. Muhammad Ashraf during his cross-examination that it was stated by him before police that an alarm was raised to the effect that ( ﻠﻮﭧﮔﮱﻤﺎﺮﮔﮱ ). The phraseology employed in the use of words ( ﻠﻮﭧﮔﮱﻤﺎﺮﮔﮱ ) clearly indicates that it may not be the appellant alone but there were some other unknown accused persons at whom hands the complainant party was assaulted and plundered."
This finding of the learned Shariat Court is contrary to evidence of Abdul Rehman, Muhammad Ashraf and Muhammad Bashir. Now the important question requiring determination is whether the presence of these persons on the place of occurrence at the time of occurrence was doubtful? The perusal of site plan shows that Hamida Bibi was murdered at point No.1. Abdul Rehman witnessed the occurrence from point No.3 which is at a distance of 27 feet from the place of occurrence. Moreover he was going to Salma Matta along with Hamida Bibi and others. He was walking ahead at the distance of 27 feet from Hamida Bibi. It is also to be noted that it is common and general tradition that when men and women go together on foot, generally the male walks at some distance ahead of women. Muhammad Bashir and Muhammad Ashraf witnessed the occurrence from the distance of 71 feet. According to site plan they were quite near from the place of occurrence. There was nothing on the record on the basis of which it could be said that from the points, on which the witnesses were shown, the place of occurrence was not visible. Even as such was not suggested to the P.Ws. during the cross-examination. The site plan clearly shows that from point No.3 the place of occurrence was visible and one while standing on point No.3 can witness the occurrence at point No.1. There is nothing like such on the basis of which it could be said that from point No.7, point No.1 was not visible. Therefore all these three persons could easily witness the occurrence from the place where they were standing according to site plan. The learned Shariat Court has held at page 8 of the impugned judgment that Mst. Said Bibi has categorically deposed during cross-examination that the accused had gone away from the place of occurrence before the arrival of P.Ws. Abdul Rehman, Muhammad Ashraf and Muhammad Bashir, therefore it could be said that they have not seen the occurrence. This finding of the learned Shariat Court is contrary to record. There is nothing on the record on the basis of which it could be said that the incident was witnessed from the place of occurrence rather it was witnessed from the points mentioned in the site plan which were at some distance from the place of occurrence as mentioned in the site plan. The learned Judges of the Shariat Court have not gone through the evidence minutely and interpreted the evidence wrongly. They have ignored the site plan along with its definition. It is pertinent to note that although the site plan by itself is not substantive piece of evidence but is not to be discarded altogether. It reflects the prosecution story as it is prepared on the pointation of witnesses. This view finds support from a case reported as Matiul Haq and 6 others v. The State 1983 PCr.LJ 429 wherein at page 76 it has been 'held as under:--
"------- ??????????? It is true that the site plan is not a piece of substantive evidence but it is equally true that it cannot be discarded altogether and reflects the prosecution story narrated by the witnesses on whose pointation it was prepared."
16. The site plan can be referred for determining the respective positions of the accused persons, deceased and the witnesses. The place from where the witnesses have witnessed the occurrence. While appreciating the evidence of eye-witnesses the Court has also to keep in mind the site plan for forming any opinion about a particular eye-witness. The Court has to see that from how much distance the P.W. has witnessed the occurrence. Whether the place of occurrence was visible from the place where the witness was standing and he has witnessed the occurrence. If the site plan contains the point from where the eye-witnesses have witnessed the occurrence, the Court while appreciating the evidence of eye-witnesses, will also keep in mind the site plan and will give due weight and importance to site plan. This view finds support form a case reported as Muhammad Ahmad and another v. The State and others 1997 SCMR 89, wherein at page 106 it has been observed as under-
"------site plan was prepared by the Draftsman on the pointation of the eye-witnesses. It could, therefore, well be referred to for determining the respective positions of the assailant/appellant and the deceased."
17. In the instant case in the site plan Exh.PH it has been shown that witness, Abdul Rehman witnessed the occurrence from point No.3 while Asia Bibi witnessed the occurrence from point No.4, Said Begum witnessed the occurrences from point No.5, Muhammad Bashir and Muhammad Ashraf witnessed the occurrence from point No.7. The witnesses were on the aforesaid points but their cynosure was point No.1 where the occurrence took place. Now while appreciating the evidence of aforesaid eye-witnesses, the Court has to consider that from where they have witnessed the occurrence. The learned Judges of the Shairat Court have held that when the witnesses reached on the place of occurrence, then the accused had run away, therefore, they have not witnessed the occurrence. But in the instant case it was not stated by the eye-witnesses that they have seen the occurrence after reaching on the place of occurrence or have not witnessed the occurrence from the distance as mentioned in the site plan. The learned Judges of the Shariat Court have not appreciated the evidence while keeping in view their positions incorporated in the site plan. No doubt if at all before their arrival at the place of occurrence the accused had run away even then they have witnessed the occurrence, from the places from where they moved towards the place of occurrence. From these points they reached at point No.1 where the occurrence had taken place. If before their arrival the accused had run away, it does not mean that they have not witnessed the occurrence. Therefore the learned Shariat Court has wrongly discarded the evidence of these three witnesses.
18. It flabbergasts us that on the one hand the learned Shariat Court has held that the evidence, as required under section 7 of E.H.A., was not available but on the other hand has awarded the sentence of 10 years rigorous imprisonment along with fine of Rs.50,000 to respondent under section 392, A.P.C. In the instant case the respondent only made an attempt to commit robbery but he could not snatch the ornaments. He fired a bullet which hit Hamida Bibi who died on the spot. The learned Shariat Court simply awarded the sentence for robbery, which was not committed in the instant case, and did not award sentence for murder of Mst. Hamida Bibi. The judgment of the learned Shariat Court is self-contradictory. On the one hand it has been held that the occurrence took place on 20-2-2002, while on the other the learned Shariat Court has taken the murder of Mst. Hamida Bibi very lightly. The impugned judgment is not based on any solid and cogent reasons. It further stultifies us that the learned Shariat Court did not bother to consider the other evidence. In the instant case, 222 bore gun was recovered at the instance of respondent and an empty was also recovered from the place of occurrence, which was sent to the Firearm Expert. According to his opinion the empty was fired from said gun. Moreover the post-mortem report also corroborates the version of prosecution, but the learned Shariat Court has not considered this evidence. It is well-settled principle of law that while dealing with a murder case it is the fundamental duty of the Court that it should sift the grain from the chaff, but in the instant case there was clear evidence of five eye-witnesses besides the post-mortem report, statement of Doctor, recovery of weapon and report of the Firearm Expert but these have been ignored by the learned Shariat Court without any reasonable justification.
19. The perusal of the file shows that the version narrated in the F.I.R. and the statements of five eye-witnesses find corroboration from the post-mortem report, which clearly shows that Mst. Hamida Bibi died with injury caused on her neck with 222 bore gun. Muhammad Ilyas, P.W.7, appeared before the Court and deposed that one empty was recovered by the police from the place of occurrence in his presence. Muhammad Lateef, P.W.6, also deposed that one empty of 222 bore gun was recovered from the place of occurrence. Thus from their evidence it is established that one empty was recovered from the place of occurrence. Muhammad Hanif and Manzoor Hussian, P.Ws. 8 and 9, deposed before the Court that a gun was recovered at the instance of convict-respondent and he stated that he murdered Mst. Hamida Bibi with this gun. S.H.O. also appeared and deposed that he recovered the gun at the instance of accused in presence of Muhammad Hanif and Manzoor Hussain. Both of them appeared as witness and supported the version. There is no contradiction among them regarding time and place of recovery and manner of recovery. Therefore after perusing their evidence, it could safely be said that the gun was recovered at the instance of respondent. It would not be out of place to mention here that the empty of 222 bore gun was sent to the Firearm Expert who, reported that the empty was fired from 222 bore gun. Thus the version narrated by the prosecution and eye-witnessed finds full corroboration from the post-mortem report, recovery of gun, empty and the report of the Firearm Expert. The prosecution has proved the case beyond any doubt.
20. As far the observation of the learned Judges of the Shariat Court that the evidence, as required under section 7 E.H.A. was not available in this case is concerned, it has no substance. The learned Shariat Court has wrongly held that Abdul Rehman, Muhammad Bashir and Muhammad Ashraf came on the place of occurrence after disappearance of accused therefore they have not witnesses the occurrence. As stated above, they have witnesses the occurrence from points Nos.3 and 7 and then they came towards point No.1. During this time if at all the accused had ran away, it will not make any difference because they had seen the occurrence from the aforesaid points.
21. It is pertinent to note that there is no enmity between the witnesses and respondent. Nothing like such was suggested to them during the cross-examination. There is nothing on the record on the basis of which it could be said that the prosecution witnesses were inimical towards the accused therefore they have deposed against him. The prosecution has no enmity with the respondent for falsely implicating him in the instant case. Therefore the evidence of such witnesses could not be rejected or disbelieved so lightly, but a due weight should be given to it because there was no reasons for falsely implicating the respondent. In the statement under section 342, Cr.P.C. it was deposed by the respondent that the prosecution witnesses have deposed against him due to relationship with the deceased. Now the question emerges when they have no enmity with the respondent then why they will falsely implicate him in the case and depose against him. It is well-settled principle of law that mere relationship of a witness with the complainant party is no ground _for discarding or disbelieving his evidence until and unless he has some enmity with the accused person. This view finds support from a case titled Muhammad Khalil v. The State 1992 SCR 249, relevant page 254, which is as under;--
"------The mere fact that some of these witnesses are related to the deceased are not sufficient to discard their testimony especially so when they have not been shown inimical to the accused-appellant. So far as the argument that the eye-witnesses are chance witnesses and could not be relied upon without corroboration is concerned, we are of the opinion that if the testimony of such a witness rings true, it can be relied upon without seeking any corroboration. In the instant case if at all any corroboration is insisted upon, the same is furnished by the recovery of blood-stained hatchet, at the instance of the accused-appellant, and the medical evidence on the record."
Our aforesaid view also finds support form another case titled Abdul Khaliq v. Jehangir and another 1999 YLR 1908 wherein it has been held at page 334 as under;--
"------The related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused."
Similar view was held in a case reported as Ishaq v. The State PLD 1985 Karachi 595, relevant page 600, which is as under:
"------However, it is a settled law that mere relationship of witness with the victim of the crime is no ground to discredit his testimony."
In the instant case there is nothing on the record on the basis of which it could be said that the prosecution witnesses were inimical towards the respondent, therefore, they have deposed against him. Thus it is our considered view that their evidence is reliable. It is also pertinent to note that after going through the evidence of eye-witnesses, witness of recovery, post-mortem report and report of the Firearm Expert it can safely be said that the respondent has committed the murder. The learned Shariat Court was also convinced that on the day of occurrence, the accused blocked the way and tried to snatch the ornaments, therefore, the sentence of 10 years' rigorous imprisonment under section 392, A.P.C. along with fine of Rs.50,000 was awarded to him but it failed to consider that Mst. Hamida Bibi was murdered in the same incident.
22. It is proved from the entire evidence that on 20-2-2002 the respondent blocked the way of Mst. Hamida Bibi in order to commit robbery but when the complainant party resisted, he fired a bullet which hit Mst. Hamida Bibi and she died on the spot. It is quite amazing that in the instant case the respondent made an attempt to commit robbery and during this effort he committed the murder of Mst. Hamida Bibi while no ornaments or any other articles were taken away by him but the learned Judges of the Shariat Court have awarded sentence under section 392, A.P.C. for robbery. This fact was totally ignored that in this case a woman was also murdered and no punishment for murder was awarded by the learned Shariat Court. Now the question emerges that which of the offence shall attract to the facts of present case. In the instant case challan has been .submitted under section 17, subsection (4) of E.H.A. which contains as under:--
"------- ??????????? Whoever, being an adult, is guilty of harrabah in the course of which he commits murder shall be punished with death imposed as hadd."
Haraabah has been defined in section 15 of E.H.A. which reads as under:--
"------When any one or more persons, whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt, such person or persons are said to commit haraabah. "
It clearly conveys that where one or more persons use the force in order to commit robbery then it shall be said that the person has committed the offence of Haraabah while under section 17(4) the sentence for such an offence is death. From the evidence of eye-witnesses, post-mortem report, recovery of gun, empty and .report of Firearms Expert, it is proved that the offence under section 17(4) E.H.A. was committed by the respondent.
23. Now the next question emerges that which sentence shall be sufficient to meet the ends of justice? While awarding the sentence, the Court has to be satisfied that (i) murder has been committed, (ii) murder has been committed by the accused and (iii) question of sentence should be determined according to gravity of offence. The question of sentence demands utmost care. The sentence must be weighed in golden scale and it should be properly balanced to punish the offender. All the circumstances surrounding the guilt must be carefully borne in mind. The elements to be considered for assessing the quantum of sentence are (a) nature of offence, (b) circumstances in which it was committed, (c) degree of deliberation shown by the offender (d) the provocation which he received (e) the antecedents of prisoner up to the time of sentence and (f) his age and character. The aforesaid matter should be established by evidence and not by the impression created on the spur of moment. In the instant case as far the nature of offence is concerned, it is a brutal gruesome murder. The respondent has murdered Hamida Bibi for the sake of ornaments. He deprived a woman from the life only for ornaments. There were no such circumstances which compelled the respondent to commit such like occurrence but he came with preparation for commission of dacoity. As far the degree of deliberation of offender is concerned, he was such a bestial kind of person that he committed the slay of a woman only for the sake of ornaments of petty amount. There is nothing on the record on the basis of which it could be said that he committed the offence on some provocation. In the matter of sentence a very wide discretion has been given to the Courts but the discretion must be exercised judicially. The basic object of punishment is to create a deterrence so that no one should dare to commit further crime. The basic object of punishment is to make the evil does an example and a warning to all other like minded persons. This view finds support from a case reported as Bakhshish Elahi v. The State 1977 SCMR 309 wherein at page 312 it has been observed as under: --
"The Legislature has conferred very wide discretion on the Courts in the matter of sentence under the Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to take into account the law and order situation, if the object of punishment or one of the objects of punishment be to deter the commission of further crimes. Now, I do not see how there can be any doubt about this question. Salmond observes in his book on Jurisprudence (Tenth Edition) at page 111 "punishment is before all things deterrent and the chief end of the law of crime is to make the evil doer an example and a warning to all that are like-minded with him". I would agree with this passage and the learned single Judge was justified in holding that a severer sentence was necessary on account of the increase of crime, provided of course culpable homicides of the type under consideration have increased, as held by the learned single Judge."
24. It is also pertinent to note that in a murder case the death sentence is a normal penalty and one while diverting towards lesser sentence has to furnish the detailed- reasonings but no reasoning is required for awarding the death- sentence because it is a normal penalty. This view finds support from a case reported as Waris Ali v. The State 1999 SCMR 1469. It is also pertinent to note that where the Court has to pass one out of two sentences it should take into consideration all the circumstances of the case and award sentence which according to its view is more befitting. This view finds support from a case reported as Noor Muhammad v. The State 1999 SCMR 2722. It further finds support from another case titled Muhammad Raman v. The State and another (1997 PCr.LJ 1522). The accused-respondent had no enmity with the deceased. He came on the place of occurrence after well preparation as he was armed with a 222 bore gun. In order to commit robbery he blocked the way but when he found some resistance, he fired a bullet at Mst. Hamida Bibi and murdered her. Therefore, he does not deserve any leniency. The learned Shariat Court has wrongly set aside the sentence of death awarded to respondent by the trial Court. ?????????
25. It would also not be out of place to mention here that as far the respondent is concerned, he is also involved in another murder case, the trial of which has been .concluded by the District Criminal Court and death sentence has been awarded to him. The respondent has filed an appeal against the same which is sub judice before the Shariat Court of Azad Jammu and Kashmir.
26. The nutshell of the above discussion is that this appeal is accepted. The judgment passed by the Shariat Court is set aside. The sentence of death awarded by the trial Court along with simple imprisonment for one month under section 341, A.P.C. and two years' simple imprisonment under section 13 of the Arms Act is 'restored.
H.B.T./7/SC(AJ&K) ??????????????????????????????????????????????????????????????????????????? Appeal accepte