MIRAJ GUL vs THE STATE

ABDUR REHMAN KHAN, J.---Appellant was charged for the murder of Salim, and on the conclusion of trial, the learned Additional Sessions Judge, by judgment dated 23-1-1993, convicted him under section 302, P.P.C. And sentenced him to life imprisonment and to pay a fine of Rs,25,000 or in default to remain in jail for further two years. Appeal preferred in the High Court against the said conviction and sentence was dismissed through the impugned judgment dated 17-10-1994. In petition moved by the appellant through jail leave was granted in these terms: "In my view, reappraisal of evidence in this case would be called for to ensure safe administration of justice."

2. Mst. Zarnosha (P.W.9) reported the murder of her son Salim to the Police. It was stated in the report that Miraj Gul appellant is her sister's son and their houses are adjoining each other. Miraj Gul used to visit her house unnecessary and without any reason which was objected by the deceased. But on the day of occurrence he again visited her house but was turned out by the deceased and an altercation ensued between the two. The accused ran towards his house and came armed with a shot gun and fired at the deceased which hit him and he fell down.

3. In the trial the complainant (P.W.9) repeated the allegations made by her in the F.I.R. And charged the appellant for the murder of her son. P.W.8 Zarin Taj is entirely independent witness who has given consistent and confidence-inspiring account of the incident and has charged the appellant for the murder. He also arrested the appellant alongwith weapon of offence after chasing him and then handed him over to the Police. His cross-examination reveals that his integrity could not be discredited on any count and it could not even be remotely suggested to him t?At he had certain malice or against the appellant. Similarly, Mst. Shaheen, the widow of the deceased who was examined as C.W.1, also charged the appellant for the murder. Her statement is also trustworthy and no previous bias or ulterior motive could be shown to detract from the veracity of her statement. The report of arms expert that the empty picked up from the spot matched with the gun recovered from the possession of the appellant at the time of his arrest, further support the correctness of the prosecution case. The appellant has, therefore, rightly been found guilty and convicted under section 302, P. P. C .

4. However, we have noticed that the learned trial Judge has not given any reason for imposing lesser penalty than the normal penalty of death which in term of section 367(5) of the Criminal Procedure Code he was legally required to have done. In the impugned judgment of the High Court also this aspect has not been considered. We have reservation about the lesser penalty awarded to the appellant and in the normal circumstances would have enhanced the sentence but in this case the accused has by now undergone more than ten years' imprisonment, therefore, at this stage we do not consider proper to do so and particularly, when neither the State nor the complainant side has moved this Court for this purpose. Copy of this judgment should be sent to Registrar of the Peshawar High Court for circulation among the learned Sessions Judges/Additional Sessions Judges for guidance and to the Law Secretary/Solicitor, N.-W.F.P. For directing the Law Officers under them to adopt appropriate remedy under the law whenever such an illegality is committed. This appeal is dismissed with the above observation.