MUHAMMAD AZAM Versus STATE
1. MUHAMMAD HALEEM, C.J .‑‑Leave to appeal was granted to the appellants in Criminal Appeals Nos. 126 of 1979 and 127 of 1979 to consider the question of reduction of the sentence only, that is, from death to imprisonment for life.
2. Both the appellants were tried alongwith Shah Jehan whose death sentence was altered to imprisonment for life by the High Court as he was found to be armed with a knife and had not caused any injury with it to deceased Mst. Razia Begum. Against the two appellants the prosecution case was that Muhammad Azam was armed with a revolver while Muhammad Jehangir with a pistol and both of them had fired at the deceased causing two bullet injuries one of which proved fatal. The other was found on the left forearm.
3. According to the prosecution all the three by practising deceit, that is, by giving out that they had come to read the meter, gained access into the house of the deceased at about 9‑30 a.m. on 28th of November, 1973, and as soon as they entered the premises they bolted the door from inside, and threatened the inmates namely, Maqbool Ahmad, the husband of the deceased, and his daughter Mst. Tayyaba, not to raise any alarm. Thereafter, they broke open a tin box in search for cash and ornaments, but instead they found clothes which they took out and scattered them on the floor. The deceased on seeing her house being looted raised an alarm upon which both the appellants fired their weapons as a result of which she died of bullet‑injuries. In the meantime information was conveyed of this robbery to the police party which was on "Gasht" which arrived there and arrested the appellants and Shah Jehan from inside the house.
4. The learned counsel for the appellants contended that in the absence of conclusive proof as to the appellant who had fired the fatal shot, the benefit of this extenuating circumstance should be given to both the appellants and in support of it, he relied on two decisions of this Court reported as Khair Muhammad alias Khairoo v. The State PLD 1975 S C 351 and Muhammad Khan v. The State P L D 1977 S C 446.In Khair Muhammad alias Khairoo, the parties were proceeding to mosque to settle the matter, and one of them from one party on the spur of the moment on oath exhorted his companions to attack the members of the Jirgah which was carried out by the members of that party resulting in the deaths of two persons. This Court held that the common intention developed on the spur of the moment, and in the absence of any satisfactory proof that it was Khair Muhammad who had caused fatal head injury to the deceased that he was given the benefit of lesser sentence. Similarly, in the case of Muhammad Khan, the assault was because the deceased had beaten the father of the assailants, and to avenge that insult they had both fired at the deceased while he was running and it could not be said as to whose shot struck the deceased in the realm of a bona fide error of perception. Accordingly, the benefit of doubt was extended to them qua the sentence. Both these cases are distinguishable on facts as this principle cannot be applied to a case of robbery or dacoity where the evidence falls short of establishing as to which robber's or dacoit's shot had killed the deceased. Both robbery and dacoity are heinous offences and involve a depravity of mind of the persons who commit these offences and by and large not only affect the peaceful living conditions of the public at large but also create a law and order situation to an extent to create panic and) alarm in the minds of the peaceful citizens.
5. The learned counsel was also not able to point out any case in which this benefit had been extended. It was a daylight occurrence and the murder was committed for a base motive. The deceased who was emotionally disturbed, could not control herself and raised an alarm, and the shots were fired to silence her. It was a brutish attack which has caused an irreparable loss to the family. Offences of the kind are now the order of the day, and we do not see any justification to award a lesser punishment.
6. Accordingly, the appeals are dismissed.
7. M . B . A . Appeals dismissed