Per Syed Zahid Hussain J-
Constitution of Pakistan(1973) Art. 185(2)(a)-
r/w Penal Code (XLV of 1860) Ss. 302, 342 & 365-
From the perusal of the constitutional and legal provisions and above pronouncements by the esteemed Hon’ble Judges, the developing trend is evident and some of the principles deducible therefrom are that :-
(i) Where the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life, the appeal lies before this Court as of right under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan. Provision of a separate procedure for that purpose under Order XXII of the Supreme Court Rules, 1980, is a strong indicator in this regard. This it self is indicative of a the importance and significance of acquittal which places the matter on different footing than others.
(ii)This Court has every right of examining evidence in a criminal appeal if the interest of justice so demand for which purpose each case will have to be adjudged upon its on facts and circumstances and in case the Court reaches the conclusion that the person has been dealt with in violation of the accepted principles of the administration of criminal justice then "no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below."
(iii)As an ultimate Court, this Court must give due weight and consideration to the opinions of the Courts below and normally the findings should not be interefered where the same "are reasonable and were not arrived at by the disregard of any accepted principles regarding the appreciation of evidence." But where defect is discovered about tenability of findings in that case it shoudl be open to the Court to come to its own independent finding upon re-examination of the evidence untrammeled by the opinions of the Courts below.
(iv)The position of the Trial Court being close to the seen of ocurrence and familiar with the ways and practices of the people involved having the benefit of recording evidence of witnesses, watching their demeanour, view formed by the said Court should not be disregarded lightly.
(v) The benefit of any reasonable doubt must go to the accused person but where the conclusion about such a doubt leading to acquittal is wholly illogical or unreasonable, the same can be reversed by the higher Court.
(vi)While giving the benefit of all doubts to the accused, the Court has still to discharge the onerous function of not allowing an offender to ascape justice.
(vii) The benefit of doubt if any can not be given to the prosecution.
(viii) Mere suspicion howsoever strong or possible is not sufficient to justify conviction and all circumstances sought to be relied for basing conviction upon circumstantial evidence must be established beyond doubt.
(ix) Straining of evidence either in favour of the prosecution or in favour of the accused should neither be countenanced nor encouraged.
(x) While examining the views expressed by the courts below it should be seen that the findings are not based on mere assumptions and conjectures.
(xi) The acquittal should not be interfered with, merely on the ground that another possible view of the evidence was available.
(xii) It is the fundamental duty of the prosecution to prove the guilt to the hilt and not of the accused to prove his plea of defence to the hilt and that the weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment.
(xiii) That the Court is to appraise evidence without being is wayed away emotionally as accused is presumed to be innocent, until the guilt is proved against him by producing evidence of incriminating nature to connect him with the commission of crime beyond shadow of reasonable doubt.
(xiv) The principle that if a witness is not coming out with the whole truth his evidence is liable to be discarded as whole is not that absolute and stand modified as his testimony will be acceptable against one set of accused, though rejected agaisnt the other subject to the rider that it must get independent corroboration on material particulars from credible evidence based on the principle of "sifting chaff out of grain".These are merely some of the known established principles being followed by the Courts and certainly not exhaustive of situations arising from time to time and case to case. [p. 723] A
As the old adage goes about the onerous duty of the Court to sift chaff from the grain, the evidence brought on record by the prosecution and the defence plea of the appellant/accused has been analyzed from all angles to find out as to how far the incriminating material is available to bring home the guilt and his involvement in the commission of the offence. It has to be kept in mind that it is an unseen incident, the charge against him was of the demand of ransom and murder of Abdul Ghafoor. Noor Muhammad facther of the victim as per the evidence is an illiterate person, unable to read or write, it is but natural if there was not that meticulous consistency in his stance. But visible and obvious lapses on the part of prosecution are not understandable. The foundation of the case was raised on the ground of friendly contacts between Muhammad Sharif appellant and Abdul Ghafoor (deceased); the transaction of sale of land and the business of plastic material between them. No investigation however was conducted on this aspect. Even the letter which became the basis for ransom demand its receipt by the father of the victim was also a question mark. No effort was made to reach those children who delivered the said letter to the Chowkidar of the Hotel, nor even the Chowkidar was investigated. Neithr the Chowkidar nor the owner of the Hotel Muhammad Bashir, who read out and explained the letter to Noor Muhammad were produced before the Court. It only means that Investigators did not perform the duty as was warranted by law.
However, the arrest of appellant itself appears to have unfolded the whole episode. He made disclosures and provided solid clues. He led the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered. He, by making confessional statement before the Magistrat solved the mystery as to how and why this all happened. The alteration that took place between the two about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing of the deceased by the appellant from the mountain and stoning him. There appears no valid justification to disbelieve Dr. Shaoib Gola AC/SDM, (P.W.6) on official who had neithr any enmity with the appellant nor any reason to misstate the facts.
The chain of events, which led the Investigators to ultimately unearth the facts was the pointation of the place of ocurrence by the appellant and statement of facts given by him before the Magistrate. Being conscious of the risk of use of retracted confesson, it is observed that it can not be used alone as evidence for conviction, the other evidence of linkages is necessarily to be considered. The recovery of the dead body on the lead provided and at the pointation of the appellant and disclosures of events as to how it so happened, the medical evidence, the report of Chemical/Serologist, the recovery of currency notes Rs. 20,000 from his residence on his pointation from the box lying underneath the cot are all important pieces of corroborative evidence which cannot be ignored. The later denial of every thing by the appellant including the disclosures and even appearance before the Magistrate looses its worth in the light of the above hard facts. His plea of torture by the investigators as per his statement u/s. 342, Cr.P.C. also was an after thought. Some doubt if at all that can be entertained is about his intention to kill, which will be examined in the later part of the judgment.
It has carefully been noted, examined and analyzed that the prosecution itself has laid great reliance and emphasis upon the lead provided by the appellant to the place (the mountain) wherefrom the dead body of Abdul Ghafoor (deceased) was recovered from underneath the stones on his pointation. Such an information of fact disclosed, which led to the discovery and recovery of incriminating articles and material assumes relevance and significance. For considering the import and effect of such disclosures, discoveries and consequential recoveries, the provisions of Art. 40 of the Qanun-e-Shahadat Ordr, 1984 get attracted.
There thus remains no doubt that the disclosures made and the clues provided by the appellant himself and unbroken chain of events furnished sound proof leading to the irresistible conclusion that the appellant was the person who was responsible for the commission of the offence, whereby Abdul Ghafoor lost life. However the justification sought to be advanced for this is the provocation by the deceased, which may be examined now.
The provocative conduct and attitude of deceased i.e. huring of abuses and calling bad names addressing his mother, sister and wife before his death cannot altogether be ignored. This, as stated by him, led to the incident of pushing of the deceased by him from the mountain, stoning him and covering him with the stones recovered from the site. All this tends to show the resultant death of Abdul Ghafoor under such peculiar provocative circumsstances, which may be relevant for considering the quantum of the sentence in such a context.
Now, therefore, is the other important question of quantum of sentence, which has engaged our serious attention. As discussed above the complaint of Noor Muhammad fathr of the deceased was that his son had left his house on10-9-1995alone. The appellant had not gone to their residence, to take him along by force or otherwise. He was empty handed and had no crime weapon with him. There was apparently no premeditation for killing of any one. The deceased was carrying a jug & glass for water with him. Who took water and bought some lemons also. He went to the appellant when both of them went to the mountains where the ugly altercation gave rise to the situation as the deceased abused him by taking the names of his mother, sister and wife. Due to this sudden eruption of hot words, attitude and conduct of deceased a a flared up situation arose.
The instances are not lacking for even this Court had been altering and converting the death sentence into a lesser penalty. It is so, as the law itself clause (b) of section 302, P.P.C. empowers the Court to inflict either death penalty or imprisonment for life for which purpose however while exercising the choice, a discretion is left with the Court to be exercised keeping in mid the facts and circumstances of a case.
It has been seen and observed from the perusal of the various precedents in relation to section 302 P.P.C in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment “with death or imprisonment for life as tazir having regard to the facts and circumstances of the case. “The infliction of death sentence would necessarily mean the “deprivation of life” of the individual i.e. a human being. Life as we know in common parlance is the blessing of God. It is considered o be “the immediate gift of God and a right inherited by nature in every individual”. 1. It means the period during which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that “No person shall be deprived of life or liberty save in acordance with law. ” It starts with “no” which means “not any, not at all. “2. It clearly signifis a prohibition and forbids the deprivation of life of any person. The exception being that such a deprivation can take place in accordance with “law”. It is thus the “law”, which can provide for depriving a person of his life. Imposition of death penalty is provided by certain laws, Pakistan Penal Code, is one such law. In the context of clause (b) of section 302, P.P.C a very heavy duty is assigned to the Courts and the Judges to weigh and analyze the facts and circumstances of the particular case, before exercising discretion of awarding penalty.
There can be no cavil that depending upon the circumstances, the background and the facts of a case, the Court is obliged to exercise option of awarding penalty. Without hesitation it may inflict death penalty if the victim had been done to death in a ghastly, cold blooded, burtal manner or roasted alive etc. In a recent pronouncement in Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that :- “In other words, the law has conferred iscretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course. Question arises, as to what could be those facts and circumstances in whch penalty of death must be imposed and lesser penalty of life imprisonment should not be awarded. The analysis of all the cases has led us to a conclusion that from the facts and circumstances of the case, if the Court finds the manner and method of incident, to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold blooded, in such cases (which list is not exhaustive), the penalty of death must not be withheld. In other words, grave inhuman attitude, acts, manners, method and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded.” The Court is therefore, expected to proceed very carefully and cautiously in the exercise of such a discretion and not to ignore the gravity of the offence committed.
Adverting now to the facts of the instant case, on re-appraisal of the entire evidence in this case, we find that the conviction of the appellant by the learned High Court was absolutely justified. However, the peculiar facts and circumstances noted above including that he was acquitted by the Trial court but was sentenced to death by the learned High Court persuade us to adopt a lenient view in the matter of infliction of sentence as, (a) there was no apparent planning, premeditation or intention to kill the deceased; there being no preparatio by the appellant in this regard nor he had any crime weapon with him. (b) filthy and vulgar abuses hurled and cursing by the deceased and thus heated altercation infuriating and giving rise to provocation. (c) that the action of a man is to be judged in the background of the society to which he belongs as he is creature of his environment (d) in any case a serious doubt prevaililng as to what actually happened just before the incident and remaining shrouded in mystery. Thus the death penalty, in the facts and circumstances, mainfestly appears out of al proportions to the offence. We, therefore, find it eminently a fit case in which the awarding of life imprisonment would have met the ends of justice.
Therefore, while deciding this appeal and maintaining conviction, we modify the sentence by converting the same from death to imprisonment for life. The rest of the conviction will remain intact. Benefit fo section 382-B Cr. P.c. will be available to him. The appeal is partly accepted to the extent of modification of sentence as per above. [pp. 738, 741, 744, 745, 748] B, C, D,E, F, G, H & K
Appeal partly accepted.