MUHAMMAD HANIF KHAN Versus STATE

RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J. ‑Mohammad Hanif, appellant (convict) in this appeal, calls in question his conviction recorded by a Division Bench of the Azad Jammu and Kashmir High Court on 12th June, 1979 whereby the High Court felt advised to disallow the appeal meant to challenge the finding of conviction, returned against him for the murder of one Mohammad Azam under section 302, Penal Code to life imprisonment by the District Criminal Court, Poonch, on 22nd February, 1978. The revision petition moved by the State for enhancement of the sentence, however, was accepted and the sentence of life imprisonment awarded to him was substituted for that of death sentence.

2. The brief facts of the case as disclosed in the judgment of the High Court are "that on the 19th of August, 1976, the deceased Muhammad Azam aged 27/28 years was proceeding to his shop with a pot of milk. His small daughter also followed him whereupon his wife, Mst. Manshad Begum, also went after them in order to bring back the child: When the deceased was passing near the house of Feroze Khan, the father of the appellant Mohammad Hanif, the appellant fired at him with a U. S. A. made gun. The deceased was seriously wounded. He started running back towards his house but fell down and died instanta neously crying Haye Haneef Maar Gya Immediately, Muhammad Hanif ran to him and after touching the barrel with his body and finding him dead ran to his house where he allegedly gave his gun to his father, Feroze Khan. A report was lodged with the Police Station Rawalakot on the same day at 10.00 a. m. the incident having taken place at 7‑3C a.m. The place of occurrence is about 3 miles from the Police Station towards the North‑West. The report was sent in writing on behalf of his widow, Mst. Manshad Begum, and was taken to the Station by Muhammad Masud Khan son of Sardar Baqa Muhammad Khan of the same village. He is stated in the F. I. R. to be an eye‑witness and the motive for the crime is stated to be dispute about encroachment on certain lands."

3. The appellant has denied the guilt and pleaded his involvement for his enmity with the deceased. He also says that the eye‑witnesses have given incorrect statements.

4. The prosecution in support of its case has examined Mst. Manshad Begum, P. W. 1, Mohammad Masood, P. W. 2, Jannat Hussain, P. W. 3, Sher Ahmed Khan, P. W. 4, Sardar Mohammad Arif Khan P. W. 5, lftikhar Hussain Khan, P. W. 6, Bashir Ahmed, Patwari, P. W. 7, Nawab Khan, P. W. 8, Sardar Mobhmmad Yusuf Khan, S. H. O. P. W. 9, Sardar Mohammad Ayub Khan, Retd. Head Constable, P. W. 10 and Dr. Mohammad lqbal Khan, P. W. 11 as witnesses. Mst. Manshad Begum, P. W. 1 and Masood, P. W. 2, out of these witnesses, are ocular witnesses of the occurrence, while Jannat Hussain, P. W. 3 claims to have reached the place of occurrence just after the incident and witnessed the appellant (convict) running away from the site of occurrence. Some of the witnesses deal with recoveries, writing of the F. I. R. and some other formalities of the investigation, The Patwari, Bashir Ahmed, P. W. 7, states to have prepared the site plan, Exh. P. G., while the evidence of Police Officers, namely, Sardar Mohammad Yusuf Khan, S. H. O. P. W. 9 and Sardar Mohammad Ayub Khan, Retd. Head Constable, P. W. 10, discloses the steps that have been taken towards completion of investigation.

5. Mst. Manshad Begum, P. W. 1, in her statement affirms the F. I. R. and states that on the day of occurrence in the morning, her husband left for Rawalakot with a pot of milk and, as usual, their daughter ran after her father and when she saw the child following her father she also, as usual, ran after the daughter to prevent her from going with her father. She says that the house of Feroze Khan was at a distance of 6 to 7 yards from their house; that their path to Rawalakot goes from that side; that she saw the appellant (accused) with a rifle in a field of maize and when her husband was passing near the house of Feroze Khan, the appellant fired at him with his gun the deceased, after receiving injuries, started running back to his house and cried that Hanif had killed him and fell down there and died instantaneously. She has stated in cross‑examination that the milk was lost on the spot and that there was also rainfall at the same time. She also states that the occurrence was witnessed by Masud and his father, Baqa Muhammad Khan, whose relationship through her own parents is admitted but any direct relation ship with the deceased is denied. She has also said that after firing on the deceased and after he fell down, the appellant ran to him and fixed the barrel on his body but then (finding him dead) went to his house and handed over the title to his father.

6. Mohammad Masood, P. W. 2, who lives in the same village and claims that his house is about 200 yards from the place of occurrence, supports the statement of Mst. Manshad Begum in minutest details. `He is the man who took the F. I. R. to the Police Station. He states that it was about 7.30 a. m. when he was going to his office, lie saw the deceased Muhammad Azam Khan passing near the house of Feroze Khan, the appellant Muhammad Hanif fired at him with a gun which hit the deceased who retreated and cried that Hanif had fired at him and then he fell down and died. He also corroborates Mst. Manshad Begum that the appellant fixed the barrel of his gun on his body and then went to his father's house: He states that the report was written by Iftikhar who was then a student of F. A. .

7. These witnesses have been put to a lengthy cross‑examination. The purpose of cross‑examination has been to show that both of them were not present on the spot and did not witness the occurrence; and that the deceased was actually killed by Feroze Khan the father of the appellant and the appellant bad been roped in innocently. It may be stated here that both the eye‑witnesses, it has come on record, are not only related inter se but they are also related to the deceased.

8. Before going into .the merits of the case, in the first instance, we turn to somewhat disturbing aspect of the case which seems to have been ignored by the High Court. This is that Jannat Hussain, P. W. 8 and Iftikhar Hussain, N. W. .6, have not been believed by the District Criminal Court for very cogent reasons, but the High Court erroneously held that even the learned District Criminal Court found them to have implicated the appellant. The attention of the learned Judges of the High Court, unfortunately, it appears, had not been drawn to the finding of the District Criminal Court which lei them to hold an incorrect fact. The inherent infirmities which the evidence of these witnesses carries are substantial, and in our view the District Criminal Court was very right to ignore the statements of these witnesses. The discrepancies in the statements of the witnesses about the time and the manner in which they reached the site of occurrence, hinted at by the District Criminal Court, coupled with the fact that their names do not appear in the F. I. R. and Ust. Manshad A Begum says that Jannat Hussain, her brother, is an educated person (had he been there then in all probabilities the F. I. R. should have been written by him) are all such factors which are sufficient to discredit these witnesses. The infirmities in their evidence, in our view, would make any body to believe that neither these witnesses reached the spot immediately after the occurrence nor they had seen the appellant (convict) running away.

9. Sardar Mohammad Sayab Khalid, the learned counsel, during his arguments, has placed much reliance on some loopholes and cracks regarding the number and the persons who reached the site of occurrence, the manner and method in which they reached there and the manner in which the F. I. R. was recorded, in the statements of eye‑witnesses which, in his view, shake the structure of the case built up by the prose cution. He further maintained that the evidence of eye‑witnesses is open to serious doubts as these witnesses are not only related inter se but they are also related to the deceased and their presence at the relevant time of occurrence is also unnatural. In his view, it would not be thus safe to rely on them without independent corroboration which is lacking in the present case.

10. Due consideration was given to the arguments. Whether a witness is to be believed depends on the circumstances and facts of each case. Assessment of interested and partisan evidence is, of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if the Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness, law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness. Evidence of such a witness, however, is required to be scrutinised with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit reliance can be placed without independent corroboration. Never theless, no inflexible rule can be formulated in this behalf. In each case the evidence of witnesses has to be evaluated on merits and if it rings true in the context and the circumstances of the case, free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corrobcration is not to be insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused. The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party. It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration. Here in this case due scrutiny of the statements of eye‑witnesses makes us to believe that they are witnesses of truth and conviction can safely be recorded on the basis of their evidence without any further corroboration.

11. In this case, we do notice some small discrepancies in the evidence of eye‑witnesses pointed out by the learned counsel, but these defects are not fatal to the prosecution case because such infirmities are bound to occur in the statement of a truthful witness. Besides, the memory and observation of every man cannot be alike and one has to give due allowance to this factor too. For the above‑stated reasons and also for the reasons to follow, we are not, therefore, prepared to give so much importance to them as to raise an artificial hollow of doubt around the prosecution case.

12. Masood, P. W., had a plausible reason to be at the scene at or near about the time of occurrence. He was a peon in the Office of the Education Department at Rawalakot and naturally at the relevant time of occurrence (7.30 a. m.) it was but expected of him to proceed to his office to attend his duties. He also lives in this very village in the neighbour hood of the site of occurrence. The time of occurrence is such when he could be expected to be in his village and the fact that he lodged the report with the Police Station is an important circumstance that verifies the prosecution claim regarding his presence on the spot.

13. Mst. Manshad Begum, P. W. the widow of the deceased, has good reasons to be at the site of occurrence. It is but natural that the child of three years should follow her father who gees out of the house as it is a normal feature in any house whether situated in a village or a city. It is also not unnatural for the mother to follow the child in order to bring her back so that she does not go with her father on his bread winning job.

14. About Masood it was also sought to be proved through sugges tions in cross‑examination that relations between his father, Baqa Mohammad, and Feroze Khan, father of the accused, were strained and there was some dispute between them regarding the possession of some demarcated forest. These suggestions have not only been aptly denied but they have no oral or documentary proof to support them. Moreover, such small disputes are very common in villages and unless there is some evidence (which is not available in this case) to show that these disputes had led to clashes or taken unhappy turn, they cannot be made the ground for discrediting the evidence of a witness whose presence on the spot is otherwise proved. The lengthy cross‑examination, in so far as the presence of ocular witnesses on the spot is concerned, has not created any doubt in our minds about their presence on the spot.

We are not, therefore, prepared to subscribe to the contention of the learned counsel that Masood and Mst. Manshad Begum are chance witnesses and their statements should be discredited for small infirmities.

Assuming that the corroboration of the eye‑witnesses, in the present case, is necessary; let us see whether corroboration is available. Firstly, let us determine as to what corroboration means. "Corrobora tion" of the statements of interested witnesses does not mean that the statements of the witnesses are false or untrue. What it really means is that before we accept it as wholly true, it is desirable that it should have a confirmatory support. In fact when it is said that the statements of witnesses need corroboration to support them, this finding proceeds on the basis that the version of P. Ws. is prima facie correct but by way of precaution it needs corroboration to attain clarity. What quantum and quality of the corroboration of the interested witnesses is required has been elaborately gone into in Nazir and others v. The State (P L D 1962 S C 269). After a thorough probe it was observed therein: ‑

But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person), can never be accepted without‑corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alone with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances %.~ ill be, sufficient as corroboration it is not possible to lay down But, as the. question before the Court would be whether some inz:osent person had not been implicated in addition to those who were guilty the circum stance relied upon must have a bearing on This question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."

16. Before taking up the corroborative evidence, we may here refer to the statement of Dr. Mohammad Iqbal, P. W. 11, who conducted the post‑mortem on the dead body. He says :‑

In my opinion the death of the deceased occurred instantaneously due to the injuries to the vital organ (right lung) by gunshot (.12‑bore) fired from the right side and from distance of about six to seven (6‑7) feet.

I traced out the internal course which pellets followed after entering the body, it was from below upward; from this it follows that at the time of fire the victim was standing at higher surface or the assailant fired in kneeling position.

The statements of eye‑witnesses on most important points, i.e. about the position of the accused and distance from which it was fired, it would be noticed, are fully corroborated by the doctor who opines that the deceased was fired at from a lower surface and from a distance of six to seven feet. The evidence of these witnesses, in our view, therefore, for its being also corroborated by the doctor on vital points rings true and we feel safe to accept it.

11. This view of ours stands supported in a recent case of the Supreme Court of Pakistan which is Aram Gul v. The State (1982 S C M R 901). In that case the ocular witnesses were believed because their version was corroborated by the medical evidence showing that the injury to the deceased was possible by the single shot from a close range which was exactly the prosecution case disclosed by the prosecution witnesses. The doctor's opinion in this case carries convincing corroborative evidence as the post‑mortem report was received after the statements of the eye witnesses, under section 161, Cr. P. C. were recorded.

18. Let us be precise to state that confirmatory evidence of the eye witnesses is available in the present case. The confirmatory evidence consists of the following :‑

Medical Evidence

(a) Dr. Mohammad Iqbal, who conducted the post‑mortem examina tion, found that the gunshot injuries were inflicted on the deceased from the distance of six to seven feet when the culprit was sitting at a lower surface. The ocular witnesses are in agreement that the deceased was fired at by the appellant from the distance of six to seven feet and also from a lower surface. This fact clearly testifies the version of the ocular witnesses that the deceased was in fact fired at exactly in the manner they depose ;

(b) The time of occurrence, i. e. 7.30 a. m. given by the prosecution witnesses is also supported by the doctor as, according to him, the death occurred 7‑8 hours before he conducted the post‑mortem examination. The examination was conducted on 19th August, 1976 at 1500 hours (3.00 p. m.). The deceased thus must have been done away at 7.30 a. m. on 19th August, 1976 ; and

(e) The site plan (Exh. P. G.) prepared by the Patwari on the information of the ocular witnesses also owns the prosecution version regarding place and the manner in which the fire was made. In the site plan relevant points, on the information of the ocular witnesses, are clearly shown. The witnesses are definite that the points shown to the site plan were mentioned by the witnesses to the Patwari:

19. In view of the confirmatory and corroborative evidence of the ocular witnesses detailed above we are satisfied that the eye‑witnesses are telling the truth and there is nothing to cast any doubt in their say.

20. So far relationship of the witnesses is concerned, that is no ground to discard their statements unless such statements are otherwise F discredited. Reference may be made to this Court's decision Muhammad Malik v. The State (1981 P Cr. L J 199) in which it has been held that mere relationship of eye‑witnesses with the deceased and their animosity with the accused are not sufficient to discredit them if their evidence otherwise inspires confidence. This case also enunciates the law to the effect that the corroboration is generally insisted upon for the satisfaction of the Court when certain infirmities crop up in the statements of the related and inimical witnesses and such corroboration can be made available in the evidence of doctor etc.

21. It may be stated here that both the Courts below have been impressed by the statements of Mst. Manshad Begum, P. W. 1 and Masood, P. W.

2. The lady witness, in this case, has herself got the F. I. R. (Exh. P. A.) written which was sent to the Police Station through Masood immediately after the occurrence. According to the F. I. R., the ceased, when he was proceeding towards the bazar, was gunned down by the accused near the house of his father, Feroze Khan, who was sitting on his `Charpai' in his verandah. . Both the witnesses say that be was fired at from the distance of five to six feet. This' fact, as said earlier, is also confirmed by the doctor. The trial Court in fact had scrutinised the evidence of both the eye‑witnesses from all the angles and believed the same for cogent reasons and we do not find any reason to have a different view.

22. In these circumstances, it is extremely difficult for us to subscribe to the contention of Mr. Sayab Khalid, Advocate, that the statements of two eye‑witnesses, namely, Masood and Mst. Manshad Begum are to be discarded outright. Our finding, therefore, is that Masood and Mst. Manshad Begum, ocular witnesses of the prosecution, are truthful witnesses to say that they were approaching the spot when Mohammad Hanif, who was laying in wait of the deceased in a maize field, gunned down the deceased; the deceased being injured proceeded towards his house but eventually he was overcome by the injuries and fell down near the house of the father of the accused. We feel no difficulty to accept their statements especially when they are materially corroborated by the statements of the doctor and Patwari.

23. We may here hint at a very important feature of this case which distinguishes it from other cases and which simplifies the difficult job to determine the guilt or otherwise of the appellant. The defence version in this case is that the deceased was killed by the father of the appellant. This defence, of course, has not been taken by the appellant but it has been expressly put to Mst. Manshad Begum and Masood P. Ws. The defence is that the deceased trespassed into the house of Feroze Khan and tried to snatch away the grass on which he was fired at by Feroze Khan and after receipt of the injury he ran away, fell down and died outside the courtyard. It means that the defence accepts the position that the deceased died of the injuries he received in the courtyard of Feroze Khan and there was some dispute about some grass. The prosecution and the defence, it would appear, are one on the point that the deceased breathed his last due to the gunshot injuries. However, the prosecution says that it was the appellant who caused the injuries while the defence gives this part to Feroze Khan, the father of the appellant. We are not, however, impressed with the defence version. Substitution of the accused is extremely rare in a daylight murder. It does not appeal to one's mind that the real murderer would be excluded from the F. I. R. given on the instructions of eye‑witnesses: such as widow of the deceased No doubt innocent persons are sometimes roped in but that is invariably done in addition to the real accused in the case. Moreover, the defence is an afterthought as it was only taken after the death of the father of the appellant. The occurrence took place on 19th August, 1976 and Feroze Khan died somewhere in February, 1977, after six months.

24. We may here make a reference to the defence witnesses. The defence evidence consisted of two witnesses, namely, Kh. Farooqi, a Clerk of the Forest Magistrate, Bagh, and Mohammad Shiraz, Head Clerk of the Office of the District Education Officer, Rawalakot. Out of these witnesses the statement of Mohammad Shiraz is relevant. He produced the attendance register of the District Education Office which shows that on 19th August, 1976, Masood was present in his Office for the first half day and on leave for the second half day. Who made the entries is not known? In any case the entries are not inconsistent with the statement of the witness who stated in cross‑examination that when he took the report to Police Station he first went to his office and sought permission of the District Education Officer for absence.

25. We now turn to the submission that the prosecution case is doubtful because the present F. I. R. was recorded after Police reached the scene of occurrence. The statements of Masood and Mst. Manshad Begum, P. Ws., when critically examined do create a ground for such a submission. At least it cannot be said with certainty that the F. I. R. was registered at the Police (Station before the police reached the scene of occurrence. To have this view we are mainly influenced by the following considerations: ‑

(i) Mst. Manshad Begum, P. W. 1, states that on the refusal of Jannat Hussain, P. W. 3, (her brother) and Iftikhar Hussain, P. W. 6, to take the F. I. R. to the Police Station she entreated Masood to lodge the report at the Police Station. But the F. I. R. enters that the same was sent at Police Station through Masood. Had the report been written immediately after the occurrence it could not have the name of Masood as a carrier of the report because as disclosed by Mst, Manshad Begum, P. W. it was only after the report was written that Masood was picked up to take and lodge the report at tile Police‑, Station ; and

(ii) The phraseology of the report is such that it cannot be expected of Iftikhar Hussain, a student, to know this phraseology. The words of the F. I. R. can only be known to a legal man such as a Police Officer or an Advocate etc. who are well versed to pick up legal words.

However, in our view, this fact, per se, is not sufficient to disbelieve the prosecution case if it otherwise stands established. In this part of the country, our experience shows, F. I. Rs. invariably are written by the police after inspection of the spot. This is done because a wrong notion prevails with the police that the prosecution case must fit in with the F. I. R. and to achieve the objective the police in the first instance satisfies itself about the state of available evidence and then registers the case to make it compatible with the evidence.

26. We may states here that this notion is wrong and requires to be discarded. If a case otherwise stands established, it would not be dis believed simply because the prosecution case does not fit in with the F. I. R. This practice is to be deprecated and discarded forthwith. At times it even earns acquittal for the real culprits. The word "investigation" itself conveys the sense that F. I. R. can never be termed to be a final word and the police is to investigate about the correctness or other wise of the case disclosed in the F. I. R. The Police is to pick up the grains of truth from chaffs of falsehood. If a case is otherwise made out; mere irregularity or inefficiency of the police, as it appears to have been done in this case, would not affect the fate of the case. The eye witnesses in this case are truthful witnesses and we are not prepared to subscribe to the submission that this solitary reason is sufficient to discredit the prosecution case which, in our view, stands otherwise satisfactorily proved.

27. The submission of the learned counsel for the defence that the recoveries of the gun, crime empty etc. .in the present case, are not in any way helpful to the prosecution and the High Court fell in error to read this in evidence against the appellant carries much substance. The recoveries have been evidenced by the witnesses who are not only inter se related but they are relatives of the deceased too. Mere relationship, in such like matters, no doubt, is not sufficient to brush aside the statement of a witness unless of course independent available witnesses are withheld. But here it has come on record that at the time the recoveries were made many people of the locality were present. The Investigating Officer; however, preferred to select only those witnesses which were closely related to deceased and are inter se related. This is a factor which cannot be lightly ignored. In the present case the police failed to call upon two or more available responsible persons of the locality to witness the recoveries and, therefore, it as legitimate to draw an inference that the police was prompted to have such witnesses only who would support the story of the prosecution. The recoveries, therefore, have been very rightly disbelieved by the District Criminal Court.

28. The law enunciated in Asghar v. The State (P L D 1970 Lah. 878 .) is in line with our view. It has been observed in that case :‑

.besides the Investigating Officer, learned counsel, who appeared for the state, did not rely on the evidence of recoveries, and rightly too, because the witnesses to the recoveries are close relatives of victims of crime."

29. It may be observed that the High Court has relied, and in our view wrongly, on the report of forensic expert. He was never examined as a witness and it is settled that mere report of the forensic expert can never be read into evidence.

30. This now brings us to the submission of Mr. Sayab Khalid that a revision petition under the Azad Jammu and Kashmir Islamic Pens'. Laws Enforcement Act, 1974 (hereinafter to be referred as the Islamee Act) to enhance the sentence is not competent. He has referred us to section 25 of the Islamee Act which says

31. According to the learned counsel .a revision petition for enhance ment of the sentence has not specifically beau provided under this previ sion of the Islamee Act and so he wants us to hold that revision petition for enhancement of sentence before the High Court was incompetent.

32. We have anxiously considered the argument and are of the view that the argument is misconceived. Section 25 of the Islamee Act clearly provides a revision petition which, in our view, is comprehensive to include a revision for enhancement of the sentence too. Apart from it, assuming, that it does not include a revision for enhancement of sentence, section 32, of the Islamee Act, which reads :‑

Clearly provides that if Islamic Act is silent about a matter, that matte can be resolved under the provisions of Penal Laws and Criminal Procedure Code. If, as contended, there is no provision in the Islame Act regarding revision for enhancement of sentence, section 439, Cr. P. C. which deals with the revisions satisfactorily meets such an eventuality. Section 439, Cr. P. C. reads as follows :‑

(1) In the case of any proceeding the record of which has been called for by itself for which has been reported for orders, or sue otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of Revision are equally divided its opinion, the case shall be disposed of in manner provided by section 429.

33. This section, it would appear, covers the controversy and allows a revision for enhancement of the sentence before the High Court. It would thus appear that section 32 of the Islamee Act provides a complete answer to the argument of the learned counsel. The argument, therefore, being without substance, stands repelled and we hold that the High Court was competent to enhance the sentence in exercise of its revisional jurisdiction.

34. We have also gone through the entire record and the judgments recorded by the District Criminal Court and the High Court. We entirely agree with the finding of the High Court that the origin of the in cident, as held by the District Criminal Court, is not shrouded in mystery; rather we are convinced that it is a pre‑planned murder of a young man and no extenuating circumstances for avoiding capital sentence are L present in this case. It appears to us that the learned trial Court was not justified on its own reasoning to award the lesser penalty. The reasons given by the District Criminal Court for giving lesser sentence are completely inadequate if not childish. We, in fact, do not notice any shroud of mystery about the manner and method of the incident.

35. The question posed, therefore, is as to where circumstances still exist to award lesser sentence to the appellant. Mere delay, per se, in hearing appeal, as contended, does not provide a justifiable ground to commute the death sentence for transportation for life. But if a person is given life expectancy that may coupled with the delay in the disposal of case/appeal provide a valid ground for commuting sentence of death. This view prevailed in Mehrban v. The State (P L D 1978 S C (AJ&K)96). It was held in that case: ‑

We have also anxiously gone into the facts of this case and the authorities cited by the learned counsel for the parties. Our view is that this is not a case where the life expectancy was given to the appellant, as both the Sessions Judge and the High Court had passed the sentence of death against the accused. The delay in the final disposal of the accused's case was due also to the fact that for a pretty long time neither the Judicial Board nor its successor, the Supreme Court, were completed. We cannot there fore, agree to the argument of the learned counsel for the appellant that because of the delay in the final disposal of the appeal, it will be in the interests of justice that the death sentence of the appellant be substituted for that of life imprisonment. If a person commits cold‑blooded murder for which there are no mitigating circumstances, he cannot escape the punishment of death if the case is proved against him under section 302, A. P. C. merely on the ground that there had been delay in final disposal of the case. Because in law, if a case is proved under section 302, A. P. C. against a culprit and there are no extenuating circumstances for awarding lesser sentence, the normal sentence provided in law is death sentence and delay in the disposal of the case, per se is not a legal ground for awarding lesser sentence. In the present case, we find that the appellant with a view to wreaking vengeance had committed cold‑blooded murder without any provocation or justifiable cause and, as such, we do not feel persuaded to interfere in the discretion of the Courts below who have awarded death sentence to appellant."

36. In this case the appellant since the occurrence either remained in the judicial lock‑up or in jail. The offence was committed in .the year 1976 and the trial was concluded in 1978 after lapse of practically three years. The High Court decided the appeal when the appellant already had expectancy of life for one year and four months. Here in the Supreme Court too the appeal, for want of proper forum, was heard practically after three years after his condemnation to death.

37. 1n view of the length of the time which had elapsed since the occurrence, coupled with the fact that as a result of the decision of the District Criminal Court, the appellant was given a full expectancy of life, we consider that the justice of the case will sufficiently be met by the lesser sentence. We may not be understood, however,, to approve the act of the appellant but are of the opinion that this case‑is one of those rare cases where justice may be tampered with mercy.

38. A host of case law owns this view but we have decided to quote only two cases of the Supreme Court of Pakistan, namely, Ghulam Hussain v. Zainullah and another (P L D 1.961 S C 230) and Mohammad Ramzan v. State (P L D 1966 S C 129).

In Ghulam Hussain v. Zainullah and another, it has been observed at page 234 :‑

In view of the length of time which has elapsed since the occurrence and the intervening incidents, in particular that as a result of the decision of the High Court, Zainullah was given a full expectation of life, we consider that the justice of the case will be sufficiently met by the lesser sentence.

In Mohammad Bamzan v. State (P L D1961 S C 230), it has been observed at page 132:‑‑

The crime was committed on the 30th September, 1961, four years age, and in the interval, for no less than two years and ten months, the convicts were given a full expectation of life. Bearing these circumstances in mind, we allow these appeals to the extent that confirming the convictions, we alter the sentences to transportation for life in each case.

The upshot of the whole discussion is that we partly allow this appeal and restore the conviction not under section 302, Penal Code but under section 3 of the Islamee Act and impose the sentence of life imprisonment (14 years) instead upon Mohammad Hanif appellant. This is how we dispose of this appeal. A copy of this judgment shall be sent to the appellant through Superintendent Jail, Muzaffarabad.

Appeal partly allowed