1984 SCMR 581

[Supreme Court of Pakistan]

Present: Muhammad Haleem, Actg. C. J., Shafiur Rahman and Mian Burhanuddin Khan, JJ

MAHBOOB ALI AND ANOTHER Versus THE STATE

Criminal Appeal No, 116 of 1981, decided on 18th February, 1984.

Authored by Mian Burhanuddin Khan. Result: Appeal dismissed.

Summary

This criminal appeal arises from the conviction and sentencing of the appellants to life imprisonment under sections 302/307/34 of the Pakistan Penal Code for the murder of Mushtaq Ahmad, which was upheld by the Lahore High Court. Leave to appeal was granted by the Supreme Court to examine whether the compounding of the offence could be considered as a relevant circumstance for reducing the sentence or setting the appellants at liberty. The Supreme Court reviewed the eyewitness testimony, medical evidence showing injuries on the injured witness and the deceased, the strong motive of avenging a brother's murder, and the abscondence of the appellants, and concluded that the conviction was well-founded. The Court held that while compromise has been recognized in capital cases to alter death sentences to life imprisonment, there is no legal provision permitting the setting at liberty of convicts where a death sentence was not passed, notwithstanding observations by the Federal Shariat Court regarding section 302 of the Pakistan Penal Code. The appeal against conviction was dismissed, but the appellants were granted the benefit of section 382-B of the Code of Criminal Procedure.

Questions settled in this judgment

Whether the compounding of an offence can be considered as a relevant circumstance to set appellants at liberty where a death sentence was not passed?
Does the provision of section 302 of the Pakistan Penal Code provide for composition of the offence of murder in the absence of statutory amendment?
Whether the testimony of an injured witness is sufficiently corroborated by medical evidence to sustain a conviction for murder?

Laws & provisions referred

Section 302, Pakistan Penal Code 1860
Section 307, Pakistan Penal Code 1860
Section 34, Pakistan Penal Code 1860
Section 382-B, Code of Criminal Procedure 1898

murdercompounding of offencecompromisemotivecriminal appealmedical corroboration

MIAN BURHANUDDIN KHAN, J.-The appellants were tried under sections 30-307/34, P. P. C. For the murder of Mushtaq Ahmad by the learned Additional Sessions Judge, Gujranwala who convicted and sentenced them to life imprisonment and fine of Rs, 5,000 each, or in default, to further R. I. For 5 years each vide judgment dated 27-9-1977. Appeal against their conviction and sentence was dismissed by the learned Lahore 'High Court vide the impugned judgment. Leave was granted by this Court vide order 10-2-1981 to consider inter alia whether in the circumstances on the case where the offence has been compounded, can this fact be Considered as relevant circumstance.

2.According to the prosecution, on 28-11-1973 at about 3 p.m. Complainant Shaukat Ali, alongwith Mushtaq Ahmad deceased, Ahmad Khan and Noora Kangi got down from a bus on adda Rattali Virkan and boarded a tonga of Aziz Mochi for their village. When they reached near the Dera of Baba Diney Shah, a shot was fired which hit the horse and brought the tonga to a stand-still. The two appellants Mahboob and Liaqat, armed with rifle and .12 bore gun, appeared and Liaqat fired the second shot which hit the shirt of Shaukat Ali and the wooden plank of the tonga; followed by another shot by Mahboob which hit Ahmad Khan on the face. Liaqat accused/appellant fired another shot which hit Ahmad Khan on his upper arm. The complainant and Mushtaq deceased and the party got down from the tonga and ran towards the northern side. The appellants chased them and Liaqat fired another shot at Mushtaq deceased which hit him on his left buttock and brought him down to the ground. Thereafter, Mahboob accused/ appellant also fired another shot at Mushtaq which hit him on his left nipple. Accused then ran away from the spot shouting that they have avenged the murder of their brother.

3.The motive for the crime is stated to be that about a year ago, Yaqub a brother of the appellants was murdered and in that case Ahmad Khan, Shaukat P. Ws. And Mushtaq deceased alongwith others were charged. They were on bail when the present occurrence took place.

4.Learned counsel for the appellants contended before us that the learned trial Judge and the learned High Court Judges have placed reliance on the tainted evidence of the close relative of the deceased. We find that the argument may be weighty to certain extent but as for as Ahmad Khan is concerned, his presence at the spot cannot be doubted because he sustained injuries and the medical evidence provides necessary corroboration. The accused/appellants also absconded soon after the occurrence and were arrested later on. In the doctor's evidence we find that the deceased had sustained injuries as follows :

(a)A gunshot wound of entrance 1-2 x 1-2 going deep towards left side of chest on the right nipple, blackening was present around the wound.

(b)A wound of exit on the back of left shoulder blade 1.1 x

(c)A gunshot wound of entrance on the left iliac bone, close to its crest, going deep towards left and upward. Blackening was present around the wound. Similarly, Ahmad Khan was also medically examined and the doctor found the following injuries on his body :-

(a)A fire-arm circular would at the right side of the face, just above the angle of mouth, going inward passing through all tissues with wound of exit at the level of 3rd right molar of upper jaw which had been broken completely. Second right molar teeth was also broken and another circular lacerated wound at outer side of second molar teeth of the lower jaw of right side.

(b)A lacerated fir-earm wound skin deep at the back of outer side of lower third of left upper arm with hole on the shirt. The upper end was blackened.

(c)Multiple abrasions at the right knee joint.

5.We find that the motive is very strong and the two appellants, being real brothers, made it a question of their prestige to avenge the murder of their brother. Thus, there cannot be any doubt as regards the testimony of Ahmad Khan. The injuries on the body of the deceased as well as on the person of Ahmad Khan also go to show that more than one person had made the attack. It is also admitted that there were recoveries of crime shells of .12 bore gun and rifle from the spot.

6.As to the question whether the offence could be compounded, there is no doubt that in a number of cases where death sentence has been passed against convicts for murder, this Court has allowed compromise and altered D the death sentence to that of life imprisonment. In the instant case where death sentence has not been passed an argument has been made that in view of the compromise the appellants should be set at liberty. We do not find any force in this argument as no such provision of law exists. The Federal Shariat Court in Muhammad Riaz etc. v. Federal Government etc. (1), had held that the provision of section 302, P. P. C. Is repugnant to the injunction of Islam because it does not provide for composition, and, therefore, that learned Court had called upon the relevant law making authorities to make the necessary amendment in the law by 1-4-1981 but this has not been done so far. Hence, the argument is without any force until the relevant law is amended. . The accused appellants shall, however, be entitled to benefit of section 382-B, Cr. P. C.

(1)PLD 1980FSC 1

revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.