PLJ 2002 SC 9 [Appellate Jurisdiction]
Present: iftikhar
muhammad chaudhry and hamto An mirza, JJ.
GULZAR AHMED-Petitioner
versus
STATE-Respondent Jail Petition No. 10 of 2001, decided on 13.9.2001.
(On appeal from the judgment/order dated 16.5.2001 passed by Lahore High Court, Lahore in Cr. A. 96/97 & MR No. 124/97)
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
-—S. 302—Under law
normal penalty for offence of Qatl-i-Amd falling within mischief of Section
302 (a) and (b) PPC is death-However, if Court is satisfied that
lesser sentence will meet ends of justice subject to condition that there exists
extenuating and mitigating circumstances, no leniency an be shown in awarding normal penalty of
death to convict-In number of
cases it has been experienced that Courts undertakes unnecessary labour to make out a case of lesser punishment for
commission of
principal offence falling within
mischief of Section 302 (a) and (b) PPC as a result whereof serious injustice and prejudice is caused to victim
party who suffered on account of
judicial pronouncement~Of course, in addition
to it object of awarding normal penalty of death in murder cases is to avoid repetition of violent loss of life by
awarding punishment- Reference in this behalf may be made to Muhammad
Sharif v Muhammad Javed @ Jeda Tedi and five others (PT-J 1976 SC
346)- However, there could be a case where mitigating or extenuating circumstances apparently exists on record
depending upon circumstances of each case-In addition to it under Islamic
principle of dispensation of criminal
justice once it is established that an offence falling within definition of Hadd is proved, no
extenuating or mitigating circumstances can be pressed into service for
warranting lesser punishment, however in cases where sentence is awarded under Tazir than factor of
mitigating or extenuating circumstances could form a relevant consideration
while imposing sentence under Section
302 (b) PPC.
[Pp. 11 & 12] A
PLJ 1976 SC 346 rel. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-
—S. 302--Petitioner has been awarded sentence of death as Tazir falling within compass of Section 302 (b) PPC question for consideration before Supreme would be whether non-considering defence version by High Court is a mitigating or extenuating circumstances in favour of petitioner-First of all it is to be seen that defence witnesses have furnished evidence to the effect that petitioner was arrested during proceedings of "Khatam Sharif meaning thereby that on producing such evidence accused intended to raise plea of alibi because he wanted to establish through these witnesses that at the time of commission of crime he was not present at place where incident had taken place-Notwithstanding the fact that whether version of defence witnesses is considered by High Court or otherwise evidence so produced through these witnesses in any case would not be sufficient to constitute a mitigating or extenuating circumstances in his favour-When prosecution has manifestly proved involvement of petitioner by producing ocular evidence, medical evidence, motive as well as confirmatory evidence to the effect that crime weapon i.e 30 bore pistol recovered from his possession was used by him in commission of offence because empties secured from place of incident have matched with it, then non-consideration of defence evidence will not cause prejudice in any manner--Placing prosecution evidence in juxta position with evidence, which has been led by defence witnesses it can conveniently be concluded that plea of petitioner, which he intends to introduce through defence witnesses has no substance-Held : There is ho inhibition or hesitation in maintaining sentence of death awarded to petitioner by trial CourT
[Pp. 11&12JA&B
Sardar M. Siddique Khan, ASC for Petitioner. Nemo for Respondent. Date of hearing: 13.9.2001.
judgment
Iftikhar Muhammad Chaudhry, J.--Petitioner seeks leave to appeal against judgment dated 16th May 2000 passed by Lahore High Court, Lahore whereby death sentence awarded to petitioner under Section 302 PPG by Additional Sessions Judge, Lahore on 12th March 1997 was confirmed while accepting Murder Reference No. 124 of 1997 as a consequence whereof Criminal Appeal No. 96/97 filed by petitioner challenging his conviction/sentence has been dismissed.
2. The prosecution case as it has been
unfolded in FIR Ex. PC recorded by Nazir Ahmed complainant brother of deceased
Akram Ali is that later sold three cassettes to the younger brother of petitioner Gulzar
Ahmed but
he was not satisfied on which the complainant's father Nazir Ahmed said that he
be given one more cassette. At about 1.00 a.m. (midnight) Gulzar came to the
house of the complainant and asked Akram deceased to come out of the house. He
also started hurling abuses. The complainant and his father returned the amount of Rs.
ISO/- but Gulzar Ahmed did not feel satisfy and left the place while extending threats that he will
take revenge of his insult. On 15th August,
1995 at about 11.45 a.m. the complainant alongwith his brother Akram Ali, brother-in-law Muhammad Arshad and his
father Manzoor Ahmed were present in the house; petitioner Gulzar alongwith one unknown young man called out Akram
and when he reached at the outer door
of the house Gulzar Ahmed and his companion started ring from their respective mouzers hitting Akram
Ali at his chest who fell down and
succumbed to the injuries instantaneously. A number of inhabitants were attracted to the place of
occurrence and in the meanwhile petitioner
Gulzar Ahmed and his companion fled-away while firing from the pistols.
The incident was witnessed by complainant, his father Manzoor and brother-in-law. PW Muhammad Yousaf, SI after
registration of the case recovered
three empties of 30 bore mouzer, blood-stained earth from the place of
occurrence vide recovery memo Ex. PE. Petitioner was arrested on 27th August, 1995, who on 2nd September, 1995 led
to the recovery of 30 bore mouzer,
which was sealed into a parcel and secured vide recovery memo Ex. PH. Meanwhile, co-accused Sajjad Ahmed
was also arrested. Learned trial
Court read over charge to both the accused under Section 302(b) PPC but they did not plead guilty as such to substantiate accusation
prosecution produced evidence. Thereafter statements of accused facing trial were also recorded under Section 342
Cr.P.C. as well as under Section 340
(2) Cr.P.C. Petitioner pleaded innocence and took plea of alibi. In support of said plea he also examined three defence
witnesses namely Muhammad Sarwar, Muhammad Asad and Sajjad Ahmad. On
completion of proceeding learned trial Court
vide judgment dated 12th March 1997 found petitioner guilty for the
commission of the offence, as such he was warded death sentence under Section 302 PPC with further direction that he will
pay Rs. 1,00,000/- as compensation to
the heirs of deceased under Section 544-A
Cr.P.C. As far as co-accused is concerned he was exonerated of the charge.
3.
Petitioner filed appeal before the High Court. Simultaneously
trial
Court also transmitted Murder Reference for onfirmation or otherwise of death sentence.
Both the matters have been disposed of by means of impugned judgment. As such instant
petition has been filed.
4.
Learned counsel appearing for the petitioner at the very
outset contended
that he is not challenging impugned udgment passed by Lahore High Court on merits but only requests for
reduction of sentence. In support of his
plea he argued that evidence furnished by defence witnesses appearing on behalf of the petitioner has not been considered
by the High Court, therefore, for
such reason petitioner is entitled for lesser punishment.
5. We afraid contention
put forward by learned counsel has no substance because under the law normal
penalty for the offence of Qatl-i- Amd falling within the mischief of Section
302 (a) and (b) PPC is death. However, if the Court is satisfied that lesser sentence
will meet the ends of justice subject to the condition that there exists
extenuating and mitigating circumstances, no leniency can be shown in awarding normal
penalty of death to the convict. In number of cases it has been experienced that
the
Courts undertakes unnecessaiy labour to make
out a case of lesser punishment
for the commission
of principal offence falling within the mischief of Section 302 (a) and (b) PPC as a result whereof
serious injustice and prejudice is caused to
the victim party who suffered on account of judicial pronouncement. Of course,
in addition to it object of awarding normal penalty of death in murder
cases is to avoid repetition of violent loss of
life by awarding punishment. Reference in this behalf may be made to Muhammad
Sharif v. Muhammad Javed @ Jeda Tedi and five others (PLD 1976 SC 452). However, there could be a case where
mitigating or extenuating
circumstances apparently exists on record depending upon the circumstances of each case. In addition to it
under the Islamic principle of dispensation of criminal justice once it is
established that an offence falling within
the definition of Hadd is proved, no extenuating or mitigating circumstance can be pressed into service for
warranting lesser punishment, however in the cases where sentence is awarded
under Tazir than factor of mitigating
or extenuating circumstance could form a relevant consideration while imposing sentence under Section 302(b) PPC.
Admittedly, in the instant case
petitioner has been awarded sentence of death as Tazir falling within the compass of Section 302(b) PPC. Now
question for consideration before us
would be whether non-considering the defence version by the High Court is a mitigating or extenuating
circumstance in favour of petitioner.
First of all it is to be seen that defence witnesses have furnished evidence to the effect that petitioner was arrested
during the proceedings of "Khatam
Sharif meaning thereby that on
producing such evidence the accused intended to raise plea of alibi because
he wanted to establish through these
witnesses that at the time of commission of crime he was not present at the place where incident had taken
place. In our opinion notwithstanding
the fact whether the version of defence witnesses is considered by the High Court or otherwise the
evidence so produced through these witnesses in any case would not be
sufficient to constitute a mitigating or
extenuating circumstance in his favour. When the prosecution has manifestly proved involvement of petitioner by
producing ocular evidence, medical evidence, motive as well as
confirmatory evidence to the effect that crime weapon i.e 30 bore pistol
recovered from his possession was used by him
in the commission of offence because the empties secured from the place of
incident have matched with it, then non-consideration of defence evidence will not cause prejudice in any manner. Placing
the prosecution evidence in juxta
position with the evidence, which has been led by the defence witnesses
it can conveniently be concluded that the plea of petitioner, which he intends to introduce through defence witnesses
has no substance. Therefore, we feel
no inhibition or hesitation in maintaining sentence of death awarded to him by the trial Court.
Thus for the above discussion, we see no merit in this petition as such the same is dismissed and leave to appeal declined.
(AAJS) Leave to appeal declined.