Find a Lawyer

Criminal Appeal No. 70 of 1984, decided on 28th June, 1984.

(On appeal from the Judgment of Peshawar High Court, dated 5‑4‑1983 in Cr. A. No. 11‑D of 1982).

‑‑ S. 302‑Murder‑Sentence‑Mitigation‑Motive for murder being constant annoyance and embarrassment caused by deceased to accus ed‑Confessional statement of accused also indicating that word "teasing" was used in context of amorous remarks with a view to establish immoral relationship‑ presumably through sodomy‑Res pective age groups of both deceased and accused not in any way going against such supposition‑Defence, held, succeeded in establishing well‑known mitigating circumstance ‑ Accused, therefore, did not deserve extreme penalty of death‑Conviction of accused under the section 302, P. P. C. upheld and sentence of death reduced to life imprisonment.‑[Sentence].

Agha Aziz Ahmad Khan Advocate for Appellant.

Advocate‑General N.‑W. F. P. and Mian M. Ajmal, Advocate Supreme Court for the State.

Date of hearing : 28th June, 1984.

.‑This appeal through leave of this Court on question of sentence only; is directed against the judgment, dated 5‑4‑1983 of the Peshawar High Court ; whereby while dismissing the appeal from conviction and sentence of death awarded against Shahzada Khan appellant, the murder reference was answered accordingly.

The prosecution case as disclosed in the deposition of Hayat Khan, P. W. 1 who is not only an eye‑witness but also the first informant is as follows

"During the days of occurrence I was working as Platoon Commandar in F. C. Fort Jani Khel. On 1‑2‑1981 at about 4‑00/4‑30 p. m. while sitting in the Lines I heard a report of a fire shot. I did not attend to that fire shot seriously and thought that it may have been fired by some one outside the Fort. After a while I heard the report of another fire shot and thereafter came out of the room where I was sitting. I saw a number of persons having gathered and was seizing rifle from the accused Shahzada now present in Court. They seized his rifle. Noor Muhammad F. C. and others seized the above rifle from the accused. I enquired of them as to what had occurred. They told me that Shahzada accused had fired at the deceased Elal and is lying injured there. I found Elal injured there. I then rushed hither and thither to arrange for a transport. For this purpose I went to the Colony near Jani Khel F. C. Fort but found nothing there. Then I came to the Fort back. Then I directed F. C. Hassan Ali and Muhammad Kaivas to go to village Hindi Khel and bring a bus from there. In the meanwhile by chance another bus came and I accompanied by F. C. Noor Muhammad, Bulbal Hussain, Akhtar Ali, Israr Hussain took the injured Bilal Hussain in that bus to the Civil Hospital, Bannu. But he died on his way. Still we were suspecting that he may not have died as we were not in a posi tion to ascertain about his death and brought him to the hospital but there the doctor told that he had already expired. Then the Police received the information of the above occurrence. A Police Officer then came to the hospital and wrote my report Exh. P. A./1. I hear my report in the Court today which is correct and bears my thumb impression correctly. After this I escorted the dead body of the deceased to the mortuary at the hospital for post‑mortem exami nation."

The other eye‑witnesses mentioned in the afore‑reproduced deposition and examined at the trial supported the prosecution case. The prosecution also relied on a confessional statement made by the appellant. It is not necessary to give the details of the other evidence nor its treatment by the learned Courts below in so far as the merits of the conviction of the appellant for the offence of murder are concerned as leave was granted only to examine the question of sentence and further that when arguing the appeal before the High Court the learned counsel for the appellant had given up the contention in, as the merits of the conviction wire concerned.

On question of sentence the learned Judges of the High Court were pleased to notice the following arguments on behalf of the appellants:

"We are, therefore, of the view that on the basis of the evidence produced at the trial the prosecution had fully proved its case against the accused‑appellant beyond reasonable doubt and it was for that reason that M. Zahoor‑ul‑Haq, the learned counsel for the accused appellant, while arguing the case frankly and rightly conceded before us that the conviction recorded by the learned trial Judge on the accused‑appellant, being well‑founded, could not be assailed. The learned counsel, therefore, confined his arguments to the quantum of punishment and argued that in the circumstances of the case the maximum penalty of death could not be exacted from the accused‑for life appellant. The ends of justice this appearing for the State, however, argued that since there were no mitigating circumstances in this case, the accused‑appellant deserved to be awarded the penalty of death. He, therefore, fully supported the sentence awarded by, the learned trial Judge to the accused appellant."

The part of the confessional statement relied upon by the learned 'defence counsel in the High Court as a mitigating circumstance, is as follows

"Deceased Bilal Hussain was my co‑villager. We both were serving in F. C. at Jani Khel Post, but we had got strained relations with each other. He was elder to me, therefore, he always used to tease and humiliate me everywhere in the service. Even on 1‑2‑1981 right from the morning he used to disgrace me and used threatening me somewhat with dire consequences......."

The argument of the learned counsel it seems was that the confessional statement having been relied upon for purpose of supporting the conviction of the appellant under section 302, P. P. C. the aforenoted circumstance which formed major part of this statement and also furnishes the extenuating circumstance could not be excluded. The argument was rebutted by the learned Judges in the High Court after making reference to the deposition of the eye‑witnesses, on the reasoning that this part of the confessional statement which furnished the motive for the occurrence could be treated as untrue. And that being so it could be safely excluded out of considera tion. This reasoning however gets neautralised by a very weighty observa tion made in the impugned judgment that "in this case the witnesses to the occurrence produced at the trial were those who were serving at the relevant time at F. C. Fort. Jani Khel and they could not be expected to know the family history of the accused‑appellant and the deceased and thus may not have been in a position to tell something which could have been dug out of that history." This according to the finding of the High Court itself the eye‑witnesses were not in a position to contradict the afore reproduced version given by the appellant regarding the motive in this case, And admittedly as has been shown in the impugned judgment the prosecution had failed even to assert any matter in the evidence adduced against the appellant. That being so the only motive available on record through the confession of the accused which as demonstrated above has not been proved to be untrue was that the deceased used to tease and annoy the appellant and this had continued for‑ some time. It was a persistent low‑keyed provocation which kept on simmering in the mind of the appellant. Thus, even if as held by the High Court it is assumed that it was not a case of, motive shrowded in mystry, the motive for the murder was the constant annoyance and embarrassment caused by the deceased to the appellant. The indication in the confessional statement is that the word "teasing" was used in the context of amorous remarks with a view to establish immoral relationship presumably through sodomy. The respective age groups of both the deceased and the appellant do not in any way go against the afore‑mentioned supposition. Looked at from whatever angle the defence had succeeded in establishing a well‑known mitigating circumstance. The; appellant did not deserve the extreme penalty of death. We accordingly partly allowed this appeal with the following short order passed and announced at the conclusion of the hearing :‑

"For the reasons to be recorded later, the appeal is disposed of as under

The conviction of the appellant under section 302, P. P. C. is upheld but his appeal is allowed to the extent that the sentence of death passed against him is reduced to life imprisonment. However, he is also sentenced to pay a fine of Rs. 10,000 in default of payment oil which, he shall undergo further R. I. for four years.

The entire amount of fine on realization shall be paid as compensation to the heirs of the deceased."

M. Z. M. Appeal partly allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.