PLJ 2022 Cr.C. 918
[
Present:
Muhammad Amjad Rafiq, J.
MUHAMMAD
ASIF--Petitioner
versus
STATE
etc.--Respondents
Crl. A.
No. 1175 of 2019, Crl. Misc. No. 1 of 2022, decided on 23.2.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 426--Suspension
of sentence--Desperate, hardened or dangerous criminal--Previous record of
accused is not necessary--The act of the perpetrator is assessed from the facts
of each case--Dismissal
of--Declaring an accused as desperate, hardened or dangerous criminal his past
record essential or it could be ascertained from his act--Previous record of
accused is not necessary for such declaration rather from the act or role of an
accused during the crime, his status as such can be ascertained--The act of the
perpetrator is assessed from the facts of each case, depending upon intention,
preparation, malice, grudge, heal and the enmity bore and is regarded in terms
of ensued effects--The act of the petitioner for causing four fire-arm injuries
that too on the face and head simply on refusal of victim to marry with him by
all means, labels him a desperate, hardened and dangerous criminal. Thus, he is
not entitled to the relief prayed for--Petition dismissed.
[Pp.
920, 921, 926] A, B & C
2020 SCMR 1225; PLD
1986 Kar. 629; PLD 1990 SC 934;
PLD 2011 Lah. 544; 2012 PCr.LJ 878 ref.
Hafiz Sohaib Altaf, Advocate
for Petitioner.
Mr. Hassan Mehmood Khan Tareen,
Deputy Prosecutor General for State.
Nemo for Complainant despite
service.
Date of hearing: 23.2.2022.
Order
Crl. Misc. No. 01 of 2022
Through this petition under Section
426, Cr.P.C. petitioner Muhammad Asif has sought the suspension of sentence
awarded to him by the learned Sessions Judge/MCTC, Sahiwal vide judgment
dated 18.09.2019 passed in case FIR No. 407, dated 16.06.2017 registered under Sections
302/34, PPC at Police Station Farid Town, District Sahiwal, whereby he was
sentenced as under:-
Ø Imprisonment
for life under Section 302(b), PPC
with compensation under Section 544-A, Cr.P.C. of
Rs. 2,50,000/-to the legal heirs of deceased, in default whereof to further
undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C.
was also extended to him.
2. The main stay of learned counsel
for the petitioner is that more than two years and five months have lapsed but
appeal of the petitioner could not be decided, therefore, the petitioner is
entitled for the relief on statutory ground of delay in decision of his appeal.
Learned Deputy Prosecutor General opposed the contention on the ground that the
petitioner by his act is a desperate and hardened criminal and is not entitled
to the relief claimed for.
3. Heard. Record perused.
4. Perusal of the record shows that Muhammad Asif, accused/ petitioner
with preplan entered into the house of complainant and allegedly made four fire
shots with pistol .30-bore which hit on forehead of Farzana Bibi, daughter of
the complainant because she has refused to marry with him; doctor had observed
effect of injuries as brain matter was coming out and fractures of underlying
bone, frontal bone, parietal bone, occipital bone as well as of maxilla.
Foremost
question before this Court is whether for declaring an accused as desperate,
hardened or dangerous criminal his past record is essential or it could be
ascertained from his act. In interpreting the words “hardened, desperate and
dangerous used in fourth proviso to Section 497, Cr.P.C., the Honourable
Supreme Court has focused on the phrase “in the opinion of the Court” and held
that previous record of accused is not necessary for such declaration rather
from the act or role of an accused during the crime, his status as such can be
ascertained. It has been held in a case reported as “Ali Akbar versus The
State” (2020 SCMR 1225) as under:
“Even in the
absence of previous record, an accused can be declared hardened, desperate or
dangerous criminal subject to act, mode and manner of occurrence in that very
case”
The Honourable Court in above case has
also considered the interpretation of word “criminal” and its three-prefix
hardened, desperate and dangerous as held in cases reported as “Gull Khan
and others v. The State” (PLD 1986 Kar.629) and “Moundar and others
versus The State” (PLD 1990 SC 934).
5. According to dicta laid down, Court has to form an opinion
that the accused was a previous convict or a criminal of one of the categories
described therein. The words "in the
opinion of the Court" connotes that such opinion cannot obviously be
subjective but must be based upon material placed before the Court, reasonably
supporting the conclusion that the person concerned is a criminal of the
classes described. The three categories have been defined in following terms;
The word "harden"
has been defined to mean, inter alia, (1) to render or make hard; to indurate,
(2) to embolden, confirm, (3) to make callous or unfeeling and (4) to make
persistent or obdurate in a course
of action or state of mind. The word "hardened" has also been defined
to mean "made hard, indurated; rendered callous; hard-hearted; obdurately
determined in a course".
The meaning of the
word “desperate” inters-alia, are in
relation to person: driven to desperation hence reckless, violent, ready to
risk or do anything.
The word "dangerous", inter alia,
means as fraught with danger or risk; perilous, hazardous, unsafe.
6. The light can be taken from
above interpretation when dealing with a petition for suspension of sentence
because above proviso of Section 497, Cr.P.C. is parametria to Section 426 where
exactly the same words have been used. Proviso` to` S.426(1A) (c), Cr.P.C.,
provids that a person who in the opinion of Appellate Court is
"hardened", "desperate " and "dangerous
criminal", is not entitled to get benefit of suspension of sentence. Such
categories have also been defined in case reported as “Rana Nasarullah
versus the State” (PLD 2011 LHR 544) with following expression:
"Hardened
criminal" is one who had developed rigid behavioural pattern
toughened through experience; and not likely to change. All those persons, who
had become rigid and devoid of any compassion, could also be termed as
'hardened'.
Criminal could be considered "desperate ", if he is
willing to take risk fearlessly out of helplessness and despair "desperate
criminal" could commit an act as a last resort without realizing its
consequences.
"Dangerous
criminal" connotes a person, who is able to cause harm and
injury having horrible effects against the society. Gravity of offence of
whatsoever nature, would bring an offender within the category of a
"dangerous criminal."
In the case
reported as “Rana Shahid Masih versus The State” (2012 PCr.LJ 878), it
has been held as under:
Meaning of word "dangerous"
can be ascertained in the light of the conduct of accused at the time of his arrest,
his previous conduct, nature of offence coupled with its effect on society, his
betrayal with reference to moral duties. If the word "dangerous
criminal" is to be considered as previous convict, then the word "dangerous
criminal" used in proviso of S. 426 (1-A) (c), Cr.P.C. would become
completely redundant and meaningless.
7.
The act of the perpetrator is assessed from the facts of each case, depending
upon intention, preparation, malice, grudge, heat and the enmity bore and is
regarded in terms of ensued effects. Cross,[1]
drawing on earlier judicial comments and practice, suggested that four factors
affect judicial construction of seriousness as well as the factors of harm
done; which are wickedness, social disapproval, social danger and social alarm.
(a) The 'evilness of
the perpetrator. This focus on degrees of wickedness is perhaps the most
difficult, depending as it does on normative judgments and underlying moral
codes. In the fragmented modern society there may be little consensus as to
what actions are most blameworthy and, further, its focus on the mental state
of the offender raises difficult questions as to intention, provocation,
malice, and excuses.
(b) Social
disapproval. This is an equally slippery concept, again depending on society’s values.
The strength of public denunciation of an offence (within its offence category)
is often strongly influenced by the age or sex of the victim: babies or
children as victims generally attract more social disapproval and so the
offending is construed as more serious. There might also be more social
disapproval of an offender if he has committed the offence before.
(c) Social danger or
social alarm. The clearest example of this factor might now be
terrorist-related offences: the degree of extreme social anxiety about global
terrorism feeds into a heightening of perceptions of the severity of offences
such as possession of a fire-arm or counterfeiting documents. Handling of
stolen goods is also seen as very serious because of the danger that the
incidence of theft will escalate if those willing to handle stolen goods are
inadequately punished. Cross's example of social alarm upgrading seriousness is
that of the person illegally entering a residential property--as opposed to
commercial property--where the same amount of damage or theft causes a greater
alarm.
In providing early
guidance on 'seriousness' the SGC approached the issue of culpability by
focusing on the ‘amount’ of intention and identifying four 'levels' for
sentencing purposes
Where the offender
(iv) has the intention
to cause harm, with the highest culpability when an offence is planned. The
worse the harm intended, the greater the seriousness.
(v) is reckless as to
whether harm is caused, that is, where the offender appreciates at least some
harm would be caused but proceeds giving no thought to the consequences even
though the extent of the risk would be obvious to most people.
(vi) has knowledge of
the specific risks entailed by his actions even though he does not intend to
cause the harm that results.
(vii) is guilty of
negligence.
The second
element of gravity is the factual judgment on the amount of harm caused by the
offending. On the face of it, this is a much easier judgment because 'harm'
appears as an objective, value-free concept. Arguably this is so
if we are talking about theft, where the offence is the deprivation of an
amount of money or property whose value is easy to calculate. But, as we saw
with our sentencing problem, the value to the victim may be sentimental'
because, say, of the giver of the gift stolen, or the offence might be assault
where the monetary value to be placed on the injury depends not only on the
permanence or otherwise of the harm but also on the context of the victim's
life. A scar on the face is, arguably, much more serious if the victim is a
model whose living depends on facial perfection, and a jaw injury might take
away the pleasure of playing in a brass band, but this raises further
questions. Should the loss to a particular individual be part of the calculation
of harm or should the offender be punished proportionately to the harm an
'average' victim would have suffered from his offending? How do you put a
price, not only on potential loss of earnings, but on the more difficult issue
of loss of pleasure, whether caused by the loss of a hobby or of one of the
five senses?
It can be calculated from above
highlights that the harm is the criteria to label one as hardened, desperate or
dangerous criminal. Act in one situation or against a person may not be regraded
much harmful as compared to others; offence against vulnerable class is more
serious particularly when one is reckless or know the effects of his act, part
selected by him for causing injury or making one as sign of victimization.
Following are the observation of Courts with respect to risk assessment of an
offender:
Accused desperate;
refusal of suspension of sentence on statutory ground:-
1. Injuries with Sarya on the head
Statements of one of
the prosecution witnesses, in the present case, had revealed that accused
initiated the attack and at first instance inflicted four injuries with his
"sarya" on the head of the deceased, and such fact was supported by
the medico-legal report as well as the post-mortem report which showed the desperation
of the accused while committing the offence. No other accused had been
nominated for causing head injuries to the deceased. “Abdul Wahab versus The
State and others” (2012 YLR 1636 (LHR)
2. Rash and
negligent driving. Statutory period, exception to;
Manner in which
offence was committed showed not only callousness but also brutality on the
part of accused as he had taken lives of four minor children due to rash and
negligent driving of his tractor trolley during school timings which required special
care. Petition was dismissed in circumstances. “Muhammad Rafique versus The
State and others” (2014 PCr.LJ 1695 (LHR)
3. Qatl-e-amd
and robbery
Petition for
suspension of sentence on ground of statutory delay in decision of appeal.
Accused and co-accused, with their faces covered, allegedly tried to rob a
motorcycle from the complainant party and during the scuffle when the face of
the accused was revealed, he fired at the deceased and killed him. Alleged act
of the accused, prima facie, rendered him a desperate criminal not entitled to
the concession of release on bail through suspension of sentence. “Muhammad
Shahbaz versus The State and others” (2013 PCr.LJ 45 (LHR).
4. Facilitated
the co-accused in commission of Murder
Accused had snatched
rifle from the deceased, threw him down, kept a guard so that other
eye-witnesses could not intervene and he facilitated the co-accused to cause as
many as twenty-two incised injuries including the amputation of right hand and
right leg of the deceased; Court while refusing to suspend the sentence on
statutory ground was not supposed to touch the merits of the case, but Court
could "take into consideration the evidence collected for purpose of
determining whether the accused was a criminal of the categories prescribed in
S. 426(1-A), Cr.P.C."Accused being hard-hearted callous and of a desperate
character was not entitled for suspension of sentence. “Muhammad Mustafa
versus The State” (2001 MLD 1335 (LHR)
Death sentence was
confirmed while declaring the accused as desperate
1. Over a petty
incident involving children playing cricket the accused persons had gone to the
complainant party's house and launched an attack with daggers and resultantly
killed two persons and injured another by giving them multiple dagger blows
mercilessly. Injuries attributed to the accused persons had proved fatal. Accused
persons appeared to be desperate persons evoking no sympathy in the matter of
their sentences of death. Convictions and sentences of death recorded against
the accused persons were maintained. “Muhammad Akbar alias Bhola and others
versus The State and others” (2019 SCMR 2036).
2. A
young lady in her prime had been butchered by the accused inside her house by
giving as many as ten chhurri blows on different parts of her body. Such
conduct displayed by the accused clearly showed that he was a cruel and
desperate person who deserved no sympathy in the matter of his death sentence.
Appeal was dismissed accordingly. “Tariq Iqbal alias Tariq versus The State”
(2017 SCMR 594).
3. For
committing murder, the accused not only used a pistol but also a screw-driver
with the use of which he had tried to take out the eyes of some of his victims.
Record made it abundantly clear that the accused had acted in the matter
brutally and mercilessly and that he was a desperate person evoking no sympathy
in the matter of his death sentence. Appeal was dismissed accordingly and death
sentence awarded to accused was upheld. “Khalid Mehmood versus The State”
(2017 SCMR 201).
4. Accused used to
associate with serious criminals because of which the deceased, who was his
relative, rebuked and reprimanded the accused. On the basis of such rebuke and
reprimand the accused and co-accused persons not only killed the deceased but
also, injured three eye-witnesses of the occurrence; Accused was a desperate
person and conduct displayed by him surely detracted from any sympathy to be
extended to him in the matter of his death sentence. Appeal was dismissed
accordingly and death sentence awarded to accused was upheld. “Ashiq Hussain
versus The State” (2017 SCMR 188).
5. Accused
murdered deceased in the most brutal and desperate manner and exhibited inhuman
attitude by cutting into pieces the dead body of deceased and throwing the same
at different places. Sentence modified by High Court was set aside and accused
was awarded death penalty--Appeal was dismissed. “Khurram Malik and others
versus The State and others” (PLD 2006 SC 354).
6. Accused
had committed the murder of a young girl of 13/16 years without any
justification in a brutal manner acting as a desperate and hardened criminal
and had fired two shots at the innocent girl. Imposition of normal penalty of
death was fully justified in circumstances. Conviction and sentence of accused
were upheld accordingly by refusing him leave to appeal. “Muhammad Akhtar
Ali versus The State” (2000 SCMR 727).
7. Accused
in a desperate manner had taken the law in his own hands and mercilessly murdered
the deceased persons by attacking the police party while it was patrolling the
area in discharge of its official duty and such offence needed deterrent punishment.
Accused was a hardened criminal and deserved normal sentence of death under S.
302, P.P.C. Convictions and sentences of accused including the sentence of
death were affirmed by Supreme Court in circumstances. “Mursalin alias Denni
versus The State” (1999 SCMR 2683).
8.
The act of the petitioner for causing four fire-arm injuries that too on the
face and head simply on refusal of victim to marry with him, by all means,
labels him a desperate, hardened and dangerous criminal. Thus, he is not
entitled to the relief prayed for, therefore, the petition in hand, having no
force or merit, is dismissed.
(K.Q.B.) Petition dismissed