FEDERAL GOVERNMENT MINISTRY OF DEFENCE vs Sepoy LIAQAT ALI

ORDER

' SH RIAZ AHMAD, C.J.--- This appeal by leave of the Court impugns the legality of judgment dated 12-12-2001 whereby a learned Division Bench of the Lahore High Court, Rawalpindi Bench, accepted the writ petition preferred on behalf of the respondent to call in question his conviction and sentences awarded to him by the Field General Court Martial in terms of order, dated 27-1-2000, subsequently confirmed by the Chief of the Army Staff on 5-4-2000, and modified his death sentence to life imprisonment for "Qatl-i-Amd" if Sepoy Aziz-urRehman, of his unit in the Army.

2. Lance Naik Manzoor Ahmad (2556581) deposed that on the day of occurrence at about 3-25 hours, he was performing his duty as Line Guard. On hearing certain voice, he had moved in that direction but found none around, but after a short while, he witnessed that respondent was causing blow with an axe in his hand to deceased Aziz-ur-Rehman, Sepoy of his unit. He caught hold the respondent at the spot, who did not offer any resistance and had also taken the axe which had fallen down. The witness noticed a deep cut on deceased neck and when he questioned as to why the deceased had been killed, respondent gave no reply to the eye-witness of the occurrence named above. Subsequently, Naib-Subedar Muhammad Sharif also woke up and rushed to spot and found the respondent in custody. He also claimed to have found blood stains on respondent's clothes. He saw the dead body of the deceased with solitary injury on his neck and the weapon of offence lying around it. Thus, he ordered for respondent's immediate arrest and intimation to senior officers in the Unit.

3. Lt.-Col. Shahid Malik, Pathologist performed the autopsy and had noticed cut wound on the right side of the neck of the deceased, and had accordingly prepared autopsy report during the trial proceedings.

4. On 23-6-1999, respondent was produced before Mr. Sikandar Bokhari, Magistrate 1st Class, Okara before whom he had made the judicial confession.

5. The only argument advanced on behalf of the respondent before the High Court was that death penalty awarded by the Military Court was not the legal sentence because mitigating circumstances emerging fromthe case warranted the award of alternate sentence provided under the law. To lend strength to the idea of mitigation, learned Judges relied upon two judgments from the Indian jurisdiction in the case reported as Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Bachan Singh v. State of Punjab AIR 1980 SC 898.

6. Record reveals that there were hardly any mitigating circumstances because it was a brutal murder. As regards motive, it is now well-settled that lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in the murder cases.

7. The sole reason that prevailed with learned Judges of the High Court for the award of lesser sentence that respondent being overwhelmed with psychological or emotional attachment wanted to save the deceased from the company of bad persons, appears to be not only fallacious, but contrary to evidence existing in this case because in the first instance, per respondent's own admission that he had brought the axe from outside in the Unit, fully substantiates his preparation and determination, and secondly, he made a clean breast of his guilt both before the Judicial Magistrate as well as in course of his trial.

8. As regards competence and jurisdiction of the Field General Court Martial, similar situation arose in Jail Petition No,103 of 1995 in the case of Muhammad Afzal v. The State and this Court in terms of a detailed order dated 14-10-1996 had declared that Field General Court Martial had competently and justifiably convicted Muhammad Afzal, petitioner therein. Undoubtedly, respondent Sepoy Liaqat Ali at the relevant time was on duty in his Unit, and as member of the Armed Forces of Pakistan was completely amenable to Pakistan Army Act. Furthermore, clause (3) of Article 199 of the Constitution was quite clearly attracted, and thus, jurisdiction of the High Court was barred with regard to the conviction recorded and sentence awarded by the Field General Court Martial.

9. Considering the case from all angles, we are left in no manner of doubt that trustworthy evidence squarely brings home the guilt against respondent-accused beyond an iota of doubt.

This was a brutal and gruesome murder in a broad-daylight and that too inside the Unit of Army, and therefore, ends of justice required the imposition of normal penalty of death sentence in proportionate to the gravity of the offence committed by respondent. Consequently, we allow this appeal, set aside the order of the High Court impugned dated 12-12-2001 with the result that the order dated 27-1-2002 of the Field Court General Martial shall hold the field.