PLJ 2023 Cr.C. 174 (DB)
Interested witness--
----Mere relationship of a witness with deceased does not oust him from Court so as to be rendered unworthy of credence--For holding an eyewitness as interested, defence has to demonstrate that he is inimically placed against accused that there is every likelihood of false implication for satisfying pre-existing grudge or vengeance.
[P. 183] A
1994 SCMR 1.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Weakness of motive--Interested witness--Eye-witnesses as chicken supplier--As a necessary consequence, their arrival at crime scene was by no stretch an outcome of twist of fate so as to dub them as chance witnesses--Legally speaking, even evidence of a passerby, who successfully explains his presence at spot, cannot be discarded by describing him a chance witness and while holding so we are enlightened from observation--Such recovery attains credence and admissibility if witnessed by two witnesses, not necessarily having abode in same neighborhood from where it is effected--The wisdom behind acceptance of such recovery has its roots in fact that it was discovered from a place within exclusive knowledge of none other than accused--The motive is concerned, it was described as delayed arrival of deceased at his work place which irked appellant who went violent to extent of taking life of an innocent young boy aged 17-years--In broader spectrum, Court consider it expedient to mention here that weakness of motive or failure of prosecution to prove it, loses significance in a barbarous murder incident like instant one and convict deserves no leniency in quantum of sentence--The weakness of motive or failure of prosecution to prove it can admittedly be made basis for having resort to alternate sentence of imprisonment for life provided in Section 302(b), PPC but such rule is not inflexible and deviation can be made from it if deceased is done to death with display of brutality--Appeal dismissed. [Pp. 184, 186 & 187] B, C & D
2011 SCMR 1153, PLD 2003 SC 704, 1978 SCMR 114 &
2001 SCMR 424.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Punishment of qatl-e-amd--Qisas and diyat--Subsequent to promulgation of Qisas & Diyat Ordinance, Chapter XVI of, PPC and more importantly its Section 302 underwent a visible transformation--Previously, solitary and legitimate punishment for an intentional murder, then called as culpable homicide amounting to murder, was nothing but death--Subsequent to amendment of Chapter XVI, murder was made punishable under various clauses of 302, which are being referred hereunder:
“302. Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to provisions of this Chapter be:
(a) punished with death as qisas;
(b) Punished with death or imprisonment for life as ta’zir having regard to facts and circumstances of case, if proof in either of forms specified in Section 304, PPC is not available;
(c) punished with imprisonment of either description for a term which may extent to twenty-five years, where according to Injunctions of Islam punishment of qisas is not applicable; [Pp. 187 & 188] E
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Sentence of death or imprisonment for life--Purview of Section 302(b), PPC, hence while focusing upon it, punishment provided therein is noticed to be death or imprisonment for life as ta’zir--The most important expression used in foregoing provision is “having regard to facts and circumstances of case” and same is of dominant significance--The insertion of referred expression explicitly stands for its legislative wisdom giving a lead that it is discretion of Court to opt for sentence of death or imprisonment for life in a proved case of homicide--Discretion so blessed upon Court under Section 302(b), PPC is not unbridled rather is to be exercised while paying heed to facts and circumstances of case under adjudication. [P. 188] F
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Quantum of sentence u/S. 302(b)--Quantum of sentence under Section 302(b), PPC no statutory guidelines are given, thus each case is dependent upon peculiar background and manner in which a person is assassinated--Homicide cases can be classified in two categories, out of which one pertains to incidents where persons are killed out of human frailty, morbid jealousy, loss of tamper or without display of brutality, etc--and second class is of ferocious killing wherein innocent persons are assassinated in a savage manner--In former class of cases, Court can opt for alternate sentence of imprisonment for life but in latter category of cases infliction of death sentence is warranted. [P. 188] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Conversion of death sentence into imprisonment for life, in cases wherein an innocent person is slain by inflicting successive lethal injuries is nothing but extending mercy to a killer who displayed no clemency towards victim, thus will be nothing but mockery of exercising discretionary powers vested in a Court under Section 302(b), PPC--The award of death sentence to perpetrators of barbarous killings besides creating deterrence is also destined to console legal heirs of victim, to whom Courts owe duty while administering justice--The term ‘just decision’ stands for a finding which is in conformity with facts of case and law on subject giving what is due to a perpetrator in reference to quantum and magnitude of aggression committed by him towards victim--A decision can be termed as just only if it is based on rationality, correct interpretation of law and conviction is in proportionate to manner in which crime is committed by delinquent--Conversion of death sentence into imprisonment for life in a case of brutal killing can by no stretch be taken as justice in its true import and sense--The wrath of injustice falls on litigants who further resort to bloodshed, effecting society at large and create unrest--The maximum punishment in cases like instant one, creates deterrence forcing individuals to follow law even if their rights are encroached upon or usurped by their adversaries--There is no dearth of murder cases in which actual culprits are successful in getting rid of punishments due to insufficiency of incriminating evidence, false and tutored witnesses, defective investigations, overawing of witnesses in trials protracted with design and discrepant medical evidence furnished either due to lack of experience or with some sinister motive--In a proved brutal murder case, Courts must not display any reluctance for awarding sentence of death--Appeal dismissed. [Pp. 188 & 189] H
PLD 1976 SC 452.
Punishment--
----Basic purpose--The basic purpose of awarding punishment rests in idea that criminals be deterred from taking law in their hands, where possible, convicts be reformed and families of victims be consoled through retribution--Uncalled for mercy while awarding punishment is destined, ultimately, to spoil legal fabric of our judicial system forcing litigants to lose faith in Courts which will prompt them to satisfy sense of retribution by having recourse to further violence. [P. 190] I
2015 SCMR 856 and 1999 SCMR 2722.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 338-F--Qisas and diyat--Interpretation--In a wrestle with proposition in hand, Court also came across preamble of Qisas and Diyat Ordinance, which revamped Chapter XVI of Pakistan Penal Code, 1860 titled as “OF OFFENCES AFFECTING THE HUMAN BODY”--The legislative intent which can be gathered from preamble is to effect that Chapter XVI was mainly amended to bring offences against human body, in accordance with injunctions of Islam stemming out from the Holy Quran and Sunnah--Through amendment introduced in Qisas and Diyat Ordinance, S. 338-F was introduced, according to which provisions of Chapter XVI and matters ancillary thereto Court shall be guided by injunctions of Islam as laid down in Holy Quran and Sunnah--On touchstone of preamble and interpretation clause of Section 338-F, question of foremost importance arises that what are injunctions of Islam about administration of justice. [Pp. 190 & 191] J, K & L
M/s. Muhammad Imran Chaudhry & M. Shakeel Tarique, Advocates for Appellant.
Ch. Shehzad Ahmad Gondal, Advocate for Complainant.
Ms. Memoona Ehsan-ul-Haq, DDPP for State.
Date of hearing: 14.9.2022.
PLJ 2023 Cr.C. 174 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz and Sadaqat Ali Khan, JJ.
MUHAMMAD FAISAL--Appellant
versus
STATE and another--Respondents
Crl. A. No. 76 of 2020 & M.R. No. 14 of 2020, heard on 14.9.2022.
Judgment
Ch. Abdul Aziz, J.--This judgment shall dispose of the above-captioned criminal appeal filed by Muhammad Faisal (appellant) and Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Sessions Judge, Jhelum through judgment dated 22.01.2020 in a trial held in case FIR No. 173/2019 dated 30.04.2019 registered under Section 302, PPC at Police Station Saddar, District Jhelum and sentenced as follows:
Under Section 302(b), PPC to suffer death sentence as Ta’zir. He was also directed to pay compensation of
Rs. 500,000/- to the legal heirs of Shehzad Ashraf (deceased) under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for 6-months, the amount of compensation was ordered to be recoverable as arrears of land revenue.
2. Concisely stated the facts of prosecution case as unveiled by Muhammad Zeeshan (PW.10) in FIR (Exh.PA) are to the effect that he originally was resident of Sargodha but used to work in Jhelum on a vehicle meant for supply of chicken to various shops; that his brother Shehzad Asrhaf aged about 17/18 years was employed at the shop of Ansar (co-accused not summoned to face trial); that on the eventful day i.e. 30.04.2019 at about 8:00 a.m., when Muhammad Zeeshan (PW.10) along with Hassan Safdar (PW.11) and Safdar Iqbal (given up) reached Vegetable Market, Jhelum for the supply of chicken, his brother Shehzad Ashraf also arrived at the shop; that Ansar and Faisal started quarrelling with Shehzad Ashraf due to his late arrival at the shop; that Muhammad Faisal (appellant) picked cleaver knife/Toka from the shop and inflicted successive blows on the left ear, face, forehead and lips of Shehzad Ashraf; that after the receipt of injuries Shehzad Ashraf fell on the ground and immediately was taken to hospital.
3. On 30.04.2019 Izzat Khan ASI (PW.9) along with other officials after the receipt of information regarding the incident reached DHQ Hospital, Jhelum where complainant Muhammad Zeeshan (PW.10) got recorded his statement (Exh.PL) which through Salah-ud-Din Hamayun Constable was dispatched to Police Station Saddar Jhelum for the registration of formal FIR. He also prepared injury statement (Exh.PD) and handed over the same to Ghulam Mustafa Constable. Subsequent thereto, he visited the place of occurrence from where he collected blood through cotton vide memo Exh.PM and prepared unscaled site plan (Exh.PN). On 30.04.2019 he arrested Muhammad Faisal (appellant) and on 01.05.2019 at about 1:00 a.m., after the receipt of telephonic call/message from complainant that his brother had succumbed to the injuries informed the high-ups as well as recorded relevant entry in the Daily Diary Register. Subsequently, the investigation of the instant case was entrusted to Tariq Mahmood SI (PW.12), who visited DHQ Hospital, Jhelum, prepared inquest report (Exh.PG), application for autopsy (Exh.PF) and handed over the dead body to Irfan Gul 127/C for the purpose of postmortem examination. On 05.05.2019 Muhammad Faisal (appellant) made disclosure and in pursuance thereof led to the recovery of clever knife/Toka (P.3) which was taken into possession vide memo Exh.PI. Tariq Mahmood SI (PW.12) after recording the statements of witnesses under Section 161, Cr.P.C. and complying all the codal formalities handed over the file to the concerned SHO for the submission of report under Section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellant produced 13-PWs, out of whom, Muhammad Zeeshan (PW.10) and Hassan Safdar (PW.11) narrated the ocular account, Dr. Zeeshan Ali Siddique (PW.5) and Dr. Sibtain-ul-Hassan (PW.6) furnished the medical account, and Izzat Khan ASI (PW.9) and Tariq Mahmood SI (PW.12) investigated the case. The remaining PWs, more or less were formal in nature.
5. Dr. Zeeshan Ali Siddique (PW.5) on 30.04.2019 at about 8:15 a.m. conducted the medico legal examination of Shehzad Ashraf (then injured) and noted the following injuries:-
(1) An incised wound measuring 10.2 x 0.6 x 1.2 cm on left side of cheek just below the ear lobe. Blood was oozing from wound site.
(2) An incised wound measuring 12.1 x 0.7 x 1.2 cm on left frontal region of skull just above left eyebrow. Profuse blood was oozing. Bone was exposed.
(3) An incised wound measuring 9.8 x 0.5 x 1.2 cm on right frontal region of skull, 7.8 cm above right eyebrow. Bone was exposed.
(4) An incised wound measuring 11.2 x 0.6 x 1.2 cm on left occipital region, 10.1 cm above left ear. Bone was exposed.
(5) An incised wound measuring 7.2 x 0.2 x 0.9 cm on right parietal region of skull just above right ear. Bone was exposed.
(6) A bruise measuring 7.1 x 2.6 in size on left eye region, redness was noted in left conjunctiva.
(7) A lacerated wound measuring 2.7 x 0.3 cm on left lip margin. No blood oozing was seen.
According to the opinion of the doctor, the probable duration of injuries was within one hour and the same were caused by sharp and blunt weapon.
6. As per record, Shehzad Ashraf succumbed to the injuries on 30.04.2019 at about 9:40 p.m. and his postmortem examination was conducted by Dr. Sibtain-ul-Hassan (PW.6) on 01.05.2019 at about 3:00 a.m. who observed almost the same injuries as described in para-5 above. The doctor after autopsy prepared Postmortem Report (Exh.PE) along with pictorial diagrams (Exh.PE/1 & Exh.PE/2). According to him, the probable time between injury and death was within 10 to 12 hours and time between death and postmortem was 4 to 6 hours. The doctor declared injuries No. 1 to 5 as sufficient for causing the death of a person in ordinary course of nature.
7. After the conclusion of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C., who in response to question “why this case against you and why the PWs deposed against you” made the following reply:
“I have no concern whatsoever with this case. In fact a quarrel took place between the deceased and some unknown person on the road in Sabzi Mandi who inflicted injuries to the deceased. The complainant and PWs, in connivance with I.Os just to blackmail me and extract money, falsely implicated me in this case. The P.Ws inter se related with the deceased and they have deposed against me just to strengthen the false story of prosecution.”
The appellant neither appeared as witness in his own defence under Section 340 (2), Cr.P.C., nor produced any other evidence to dislodge the prosecution case. On the conclusion of trial, the appellant was convicted and sentenced as afore-sated, hence the instant criminal appeal and murder reference.
8. It is contended by learned counsel for the appellant that the F.I.R. appears to have been promptly registered but it was made to look so through tampering of record; that in fact the murder incident took place in the dark hours of night and the witnesses acquired knowledge about it on the following morning; that the narrators of ocular account indeed were not present at the crime scene but subsequently came forward with the false claim of having witnessed the occurrence; that even otherwise, none of the two eyewitnesses was having apparently any reason for their acclaimed presence at the spot, thus they can safely be termed as chance witnesses; that both the eyewitnesses contradicted each other on material aspects and their narration runs contrary to the medical evidence, thus they are not worthy of any reliance; that the recovery of cleaver knife (Toka) since was effected without adhering to the provisions of Section 103, Cr.P.C., thus is to be discarded; that though even the motive behind the crime, put forth by the prosecution, was not proved and multiple doubts were emerging from record but still the appellant was handed down guilty verdict. With these submissions, it was urged that the conviction awarded to the appellant be set-aside.
9. On the other hand, learned law officer assisted by learned counsel for the complainant supported the impugned judgment and argued that the case is arising out of a crime report which was registered almost within one hour of the incident; that the two eyewitnesses had no previous enmity with the appellant so as to falsely implicate him in the case; that even otherwise murder incident occurred in a busy market, thus there is no question about it to have gone unnoticed; that the witnesses on one hand reasonably explained their presence at the spot and on other hand, provided the tale of incident which is in absolute conformity with the medical evidence; that the corroboration of the ocular account can further be sought from the duly proved motive and positive report of Punjab Forensic Science Agency, Lahore, according to which the cleaver knife recovered from the appellant was found stained with human blood; that the appellant committed brutal murder of an innocent person, thus deserves no mercy. With these submissions, it was strongly pressed that the conviction and sentence awarded to the appellant be upheld.
10. Arguments heard. Record perused.
11. It evinces from the record that on 30.04.2019 at about 8:00 a.m. one Shehzad Ashraf aged about 17/18 years fell victim to a murderous assault during which he endured multiple sharp edged traumas which later in the night became cause of his death. In the First Information Report (Exh.PA), allegation of committing the crime was pointed towards two persons, namely Faisal and Ansar, out of whom the former was saddled with the allegation of having inflicted all the injuries to the deceased through a cleaver knife (Toka), whereas the latter was assigned the role of simple presence. It will not be out of place to mention here that Ansar though was named in the FIR as an accused but since he was not assigned any role whatsoever, thus was not even summoned by the Court to face trial. The scanning of record unfolds that the case of prosecution, so to speak, mainly hinges upon the ocular account, medical evidence, recovery of cleaver knife and the motive.
12. During trial the tale of incident was brought on record through two eyewitnesses, namely, Muhammad Zeeshan and Hassan Safdar (PW.10 & PW.11) who appeared in the dock and acclaimed presence at the eventful time. As per facts, Shehzad Ashraf (deceased) was real brother of Muhammad Zeeshan (PW.10) and used to work at the poultry shop of Muhammad Faisal (appellant) situated in vegetable market of Jhelum. On the eventful day, Shehzad Ashraf (deceased) reached late on the shop which irked Muhammad Faisal (appellant) who took out the cleaver knife and inflicted multiple injuries with it. At the very outset, it is noticed by us that the unfortunate incident took place at 8:00 a.m. on 30.04.2019 and immediately thereafter the victim was taken to DHQ Hospital, Jhelum in a precarious injured condition and reached there at 8:15 a.m. Shortly thereafter, Izzat Khan ASI (PW.9) also arrived in Hospital and the detail of crime was furnished to him by Muhammad Zeeshan (PW.10) through oral statement (Exh.PL) recorded at 8:45 a.m. The imparting of information of occurrence within 45-minutes unambiguously but positively indicates about the acclaimed presence of eyewitnesses at the spot. The registration of F.I.R. with extreme promptitude and that too upon the statement of an eyewitness is sufficient to establish his presence at the place of homicide. In addition, it is observed by us that Investigating Officer Izzat Khan ASI (PW.9) reached DHQ Hospital within 30-minutes and found both the eyewitnesses in attendance. Needless to mention here, the idea of procuring the presence of a false eyewitness in such short span of time borrows no logic. In this regard, a pressing need is felt to refer an observation of the Hon’ble Apex Court in case reported as Muhammad Ahmad and another v. The State and others (1997 SCMR 89) which is placed hereunder:
“Presence of Munawar Khan P.W. at place of occurrence is also sufficiently established on record in view of the facts found by the Courts below namely that his name as an eye-witness of the occurrence was mentioned in the F.I.R. lodged within 45-minutes of the occurrence; he was found present at the place of occurrence when the Investigating Officer reached there at 10-30 a.m. after recording the statement of the complainant in hospital and dispatching the dead body for postmortem examination and that he (Munawar Khan) had made the statement before the Investigating Officer and also witnessed the collection of blood-stained earth from them and attested the recovery memo. It has, therefore, been rightly observed by the Courts below that the presence of this witness who was resident of a village 3/4 miles away could not have been managed/procured so soon after the occurrence.”
13. While appraising the intrinsic worth of ocular account, it is noticed by us that though complainant Muhammad Zeeshan (PW.10) was the real brother of deceased but the two sides had no previous history of any abhorrence of short or long duration, rather were tied in the knot of kinsmen inter se. To be precise, the mothers of complainant Muhammad Zeeshan (PW.10) and Muhammad Faisal (appellant) were related as cousins. On account of his relationship with deceased as brother, the deposition of Muhammad Zeeshan (PW.10) was questioned by describing him as a partisan witness. Suffice it to say in this regard that mere relationship of a witness with the deceased does not oust him from the Court so as to be rendered unworthy of credence. For holding an eyewitness as interested, the defence has to demonstrate that he is inimically placed against the accused that there is every likelihood of false implication for satisfying pre-existing grudge or vengeance. If any reference in this regard is needed that can be made to the case reported as Iqbal alias Bhalla and 2 others v. The State (1994 SCMR 1) wherein the Hon’ble Supreme Court of Pakistan held as under:
“An interested witness is one who has a motive for falsely implicating an accused, is a partisan witness and is involved in the matter against the accused.”
14. While adjudging the acclaimed presence of the eyewitnesses at the crime scene, it is noticed by us to be not a sheer coincidence and instead outcome of their ordinary pursuit of business. Muhammad Zeeshan (PW.10) and Hassan Safdar (PW.11) used to supply chicken in Sabzi Mandi Jhelum through a vehicle and at the eventful time they acclaimed their presence at the spot out of their normal routine. Both the eyewitnesses were cross-examined in this regard but they remained in unison with each other by deposing that it was their schedule to reach vegetable market in the early hours of morning. Though the defence made an attempt to prove that Muhammad Zeeshan (PW.10) was having abode in District Sargodha but it remained abortive. It was satisfactorily proved during trial that Muhammad Zeeshan (PW.10) along with his slain brother Shehzad Ashraf was residing in Hassan Abad, District Jhelum. It was vociferously argued on behalf of the appellant that the narrators of ocular account were chance witnesses and the tale of incident so put forth by them is suspect evidence but after perusing the record with due circumspection, we have all the good reasons to differ with such submissions. We have taken note of the fact that there was no denial from the defence about the eye-witnesses as chicken supplier. As a necessary consequence, their arrival at the crime scene was by no stretch an outcome of twist of fate so as to dub them as chance witnesses. Legally speaking, even the evidence of a passerby, who successfully explains his presence at the spot, cannot be discarded by describing him a chance witness and while holding so we are enlightened from the observation of Hon’ble Supreme Court of Pakistan expressed in Javaid Ahmad alias Jaida v. The State and another (1978 SCMR 114) which for reference sake is being referred hereunder:
“When crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passerby cannot be rejected by describing them as mere chance witness, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness of contradiction in their testimony.”
In another case reported as Imran Ashraf and 7 others v. The State (2001 SCMR 424), the Hon’ble Supreme Court of Pakistan dilated in-depth upon the concept of a chance witness and concluded as under:
“The evidence of chance witnesses in criminal cases can be accepted if they successfully establish their presence at the place of incident otherwise Court has to undertake an exercise to find out strong corroboration to their statements in order to make them admissible.”
15. It can further be deciphered from record that both the eyewitnesses provided the detail of incident with extreme unanimity and differed not even at minutest level. We found no conflict from the deposition of both the eyewitnesses about routine of their business, arrival in the vegetable market, the time of unfortunate incident, the reason which formed basis of crime, the weapon used in the occurrence and the locales of injuries endured by the victim. Likewise, no anomaly is discernable from record regarding shifting of victim Shehzad Ashraf to hospital in injured condition, arrival of police at the hospital and recording of the statements of eyewitnesses. There is yet another factor which persuaded us to place explicit reliance upon the tale of incident furnished by both the eyewitnesses. We took note of the fact that though the deceased received seven injuries out of which five were serious in nature but still none of them was attributed to Ansar, brother of the appellant, who was stated to be present at the crime scene. On one hand the foregoing fact gives a clue that the eyewitnesses did not have any special reasons to falsely implicate the appellant in this case and on the other hand it reflects positively upon the regard they had about the truth of their deposition. Had the witnesses any axe to grind against the family of appellants, they would have attributed one or two injuries to Ansar, who was not even summoned to face the trial. The learned defence counsel though argued that Shehzad Ashraf (deceased) and Muhammad Zeeshan (PW.10) were sharing the common blood line but still the former made no effort to save his brother through an intervention and on this score questioned their presence. We are least convinced from such submission when seen in the context that appellant was at the peak of aggression and had gone berserk while mounting the assault upon Shehzad Ashraf (deceased) as is evident from the nature and number of injuries inflicted by him. The intervention by the witnesses vividly would have made them vulnerable to the receipt of similar treatment, endangering even their own lives. Last but not the least non-citing of a witness from the vicinity of crime is also not a factor to disbelieve the prosecution case as we are not oblivious of the fact that a neutral person always opts not to poke his nose in the enmity of others and instead resorts to reluctance for becoming a witness of crime. We have all the good reasons to hold that the depositions of eyewitnesses inspire confidence and their presence at the spot is proved beyond speck of any ambiguity.
16. We have also dilated upon the medical evidence furnished during trial by Dr. Zeeshan Ali Siddique and Dr. Sibtain Hassan (PW.5 & PW.6) who conducted the medical examination and autopsy of the deceased, respectively. It divulges from the Medico-legal Examination Certificate (Exh.PC) issued by Dr. Zeeshan Ali (PW.5) that he found Shehzad Ashraf (then injured) in receipt of seven injuries, out of which five were inflicted through a sharp edged weapon. All these five traumas were apparently inflicted with force and that too at the vital locales, none other than the skull. The duration within which Dr. Zeeshan Ali Siddique (PW.5) opined about the victim to have endured these injuries coupled with his observation about exclusion of any possibility of these traumas being self-inflicted provides strength to the case of prosecution. Shehzad Ashraf succumbed to the injuries so inflicted by the appellant later in the night and his autopsy was conducted shortly thereafter by Dr. Sibtain-ul-Hassan (PW.6) during which he observed same number and nature of injuries as noted by
Dr. Zeeshan Ali Siddique (PW.5). Without scintilla of exaggeration, it is concluded by us that no anomaly came to surface from the medical and ocular evidence as both are in absolute conformity with each other.
17. The appellant was arrested in this case on 30.04.2019. During investigation he made disclosure on 05.05.2019 and in pursuance whereof got recovered cleaver knife/Toka (P.3) from the residential room of his house. The recovery proceedings were witnessed by Muhammad Ashraf (PW.8) and Tariq Mehmood SI (PW.12) who furnished their impeccable details, giving rise to no doubt of any nature. The weapon of offence (P.3) after its recovery was forwarded to Punjab Forensic Science Agency, Lahore and through report Exh.PQ it was reported to be stained with human blood. The recovery of cleaver knife (P.3) is challenged on the solitary ground that it was effected without adhering to the provisions of Section 103, Cr.P.C. While embarking upon the arguments of learned defence counsel so referred above, these are found to be contrary to the facts of the case and law on the subject. Since the recovery of cleaver knife (P.3) was effected on the disclosure and pointation of the appellant, thus is relevant under Article 40 of Qanun-e-Shahadat Order, 1984. Such recovery attains credence and admissibility if witnessed by two witnesses, not necessarily having abode in the same neighborhood from where it is effected. The wisdom behind acceptance of such recovery has its roots in the fact that it was discovered from a place within the exclusive knowledge of none other than the accused. For the clarity of proposition, an observation of Hon’ble Supreme Court of Pakistan in case reported as Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704) is referred hereunder:-
“Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible.”
In the foregoing circumstances, we are constrained to hold that the recovery of cleaver knife (P.3) can safely be treated sufficient incriminating material so as to be used for corroboration.
18. So far as, the motive is concerned, it was described as delayed arrival of the deceased at his work place which irked the appellant who went violent to the extent of taking the life of an innocent young boy aged 17-years. In broader spectrum, we consider it expedient to mention here that weakness of motive or failure of prosecution to prove it, loses significance in a barbarous murder incident like the instant one and the convict deserves no leniency in the quantum of sentence. The weakness of motive or failure of prosecution to prove it can admittedly be made basis for having resort to alternate sentence of imprisonment for life provided in Section 302(b), PPC but such rule is not inflexible and deviation can be made from it if the deceased is done to death with display of brutality. Even otherwise, in case reported as Mumraiz v. The State (2011 SCMR 1153), the Hon’ble Supreme Court of Pakistan while dealing with the question of absence or weakness of motive, upheld the death sentence with the following observation:
“The insufficiency or motive being shrouded in mystery could not be considered as circumstances non-awarding normal penalty of death to a murderer or to reduce the sentence of death to lesser punishment. We are fortified by the judgments of this Court in the cases reported as Zulfiqar Ali v. The State (2008 SCMR 796), Syed Hamid Mukhtar Shah v. Muhammad Azam (2005 SCMR 427), Hameed Khan alias Hamedi v. Ashraf Shah (2002 SCMR 1155), Nasir Ahmed v. The State (2009 SCMR 523).”
19. We are mindful of the fact that subsequent to the promulgation of Qisas & Diyat Ordinance, Chapter XVI of PPC and more importantly its Section 302 underwent a visible transformation. Previously, the solitary and legitimate punishment for an intentional murder, then called as culpable homicide amounting to murder, was nothing but death. Subsequent to the amendment of Chapter XVI, the murder was made punishable under various clauses of 302, which are being referred hereunder:
“302. Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be:
(a) punished with death as qisas;
(b) Punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304, PPC is not available;
(c) punished with imprisonment of either description for a term which may extent to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable;
Since the case in hand comes within the purview of Section 302(b), PPC, hence while focusing upon it, the punishment provided therein is noticed to be death or imprisonment for life as ta’zir. The most important expression used in the foregoing provision is “having regard to the facts and circumstances of the case” and the same is of dominant significance. The insertion of referred expression explicitly stands for its legislative wisdom giving a lead that it is the discretion of the Court to opt for the sentence of death or imprisonment for life in a proved case of homicide. Needless to mention here that the discretion so blessed upon the Court under Section 302(b), PPC is not unbridled rather is to be exercised while paying heed to the facts and circumstances of the case under adjudication. For deciding the quantum of sentence under Section 302(b), PPC no statutory guidelines are given, thus each case is dependent upon the peculiar background and the manner in which a person is assassinated. In our view, homicide cases can be classified in two categories, out of which one pertains to incidents where persons are killed out of human frailty, morbid jealousy, loss of tamper or without display of brutality, etc. and the second class is of ferocious killing wherein innocent persons are assassinated in a savage manner. In the former class of cases, the Court can opt for the alternate sentence of imprisonment for life but in the latter category of cases the infliction of death sentence is warranted. The conversion of death sentence into imprisonment for life, in cases wherein an innocent person is slain by inflicting successive lethal injuries is nothing but extending mercy to a killer who displayed no clemency towards the victim, thus will be nothing but mockery of exercising the discretionary powers vested in a Court under Section 302(b), PPC. The award of death sentence to the perpetrators of barbarous killings besides creating deterrence is also destined to console the legal heirs of the victim, to whom the Courts owe duty while administering justice. The term ‘just decision’ stands for a finding which is in conformity with the facts of the case and law on the subject giving what is due to a perpetrator in reference to the quantum and magnitude of aggression committed by him towards the victim. A decision can be termed as just only if it is based on rationality, correct interpretation of law and the conviction is in proportionate to the manner in which the crime is committed by the delinquent. On the same analogy, it can inevitably be held that conversion of death sentence into imprisonment for life in a case of brutal killing can by no stretch be taken as justice in its true import and sense. The wrath of injustice falls on the litigants who further resort to bloodshed, effecting the society at large and create unrest. The maximum punishment in cases like the instant one, creates deterrence forcing the individuals to follow the law even if their rights are encroached upon or usurped by their adversaries. We are not oblivious of the fact that there is no dearth of murder cases in which the actual culprits are successful in getting rid of punishments due to insufficiency of incriminating evidence, false and tutored witnesses, defective investigations, overawing of witnesses in trials protracted with design and discrepant medical evidence furnished either due to lack of experience or with some sinister motive. We are leaned to hold that in a proved brutal murder case, the Courts must not display any reluctance for awarding sentence of death. In the same stretch, we feel a compelling need to refer an observation of the Hon’ble Supreme Court of Pakistan in case reported as Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 Supreme Court 452) which reads as under:
“An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with normal penalty of death which is not confined to the actual killer but is also extended to other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs, the reluctance of eyewitnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trials of appeals all combined to help the murderers of whom a small fraction is brought to book. Viewed in this background, the marked propensity of Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape their share of responsibility.”
The basic purpose of awarding punishment rests in the idea that the criminals be deterred from taking law in their hands, where possible, the convicts be reformed and the families of victims be consoled through retribution. Uncalled for mercy while awarding punishment is destined, ultimately, to spoil legal fabric of our judicial system forcing the litigants to lose faith in the Courts which will prompt them to satisfy sense of retribution by having recourse to further violence. In another case reported as Dadullah and another v. The State (2015 SCMR 856) the Hon’ble Supreme Court of Pakistan while pondering upon the approach of leaning towards leniency in awarding punishments observed as under:
“If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. The Courts should not hesitate in awarding the maximum punishment in such like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a fact to be taken into consideration while awarding sentence, specially the sentence of death. Very wide discretion in the matter of sentence has been given to the Courts, which must be exercised judiciously.”
There is yet another observation of the Hon’ble Apex Court given in case reported as Noor Muhammad v. The State (1999 SCMR 2722) regarding the quantum of sentence in proved criminal cases and is being referred hereunder:
“However, we may observe that people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realize that they owe duty to the legal heirs/relations of the victims and also to the society.”
20. In a wrestle with the proposition in hand, we also came across the preamble of Qisas and Diyat Ordinance, which revamped Chapter XVI of the Pakistan Penal Code, 1860 titled as “OF OFFENCES AFFECTING THE HUMAN BODY”. The legislative intent which can be gathered from the preamble is to the effect that Chapter XVI was mainly amended to bring the offences against human body, in accordance with the injunctions of Islam stemming out from the Holy Quran and Sunnah. For clarity of proposition, the preamble of Qisas and Diyat Ordinance is referred hereunder:
“Whereas it is expedient further to amend the Pakistan Penal Code 1860 (Act XLV of 1860), and the Code of Criminal Procedure, 1898 (Act V of 1898), to bring them in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah;”
Through the amendment introduced in Qisas and Diyat Ordinance, Section 338-F was introduced, according to which the provisions of Chapter XVI and the matters ancillary thereto the Court shall be guided by the injunctions of Islam as laid down in Holy Quran and Sunnah. On account of its importance, Section 338-F, PPC is reproduced hereunder:
“338-F. Interpretation. In the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunction of Islam as laid down in the Holy Quran and Sunnah.”
On the touchstone of the preamble and interpretation clause of Section 338-F, the question of foremost importance arises that what are the injunctions of Islam about administration of justice. Almighty Allah laid emphasis in Quran upon Adal (justice) while deciding disputes as is evident from following verses:
وَإِذَا حَكَمْتُم بَيْنَ ٱلنَّاسِ أَن تَحْكُمُوا۟ بِٱلْعَدْلِ ۚ (النساء :58)
"اور جب لوگوں کے درمیان فیصلہ کرو تو عدل کے ساتھ فیصلہ کرو"
وَإِنْ حَكَمْتَ فَٱحْكُم بَيْنَهُم بِٱلْقِسْطِ ۚ (المائدۃ :42)
"اور اگر آپ فیصلہ کریں تو ان کے درمیان انصاف کے عین مطابق فیصلہ کریں "
یٰـدَاودُ اِنَّا جَعَلْنٰکَ خَلِیْفَۃً فِی الْاَرْضِ فَاحْکُمْ بَیْنَ النَّاسِ بِالْحَقِ (ص 26:)
"اے داؤدؑ! ہم نے آپ کو زمین میں خلیفہ مقرر کر لیا ہے‘ لہٰذا تم لوگوں کے درمیان حق کے ساتھ فیصلے کرو"
The perusal of above verses reveals that in decision of cases the words ‘Adal’, ‘Bil-Haq’ and ‘Bil-Qist’ are used. So far as ‘Adal’ is concerned, it stands for equality and balance, whereas ‘Bil-Qist’ is a word of higher import, placed on much upper pedestal than the word ‘Adal’. As regards ‘Bil Qist’, it implies for a decision where a litigant gets what he deserves. Dr. Mehmood Ahmad Ghazi, a well-read Islamic scholar, in his book Adab-ul-Qazi defined the expressions ‘Adal’ and ‘Qist’ in following manner:-
وَإِنْ حَكَمْتَ فَٱحْكُم بَيْنَهُم بِٱلْقِسْطِ ۚ إِنَّ ٱللَّهَ يُحِبُّ ٱلْمُقْسِطِينَ (المائدۃ :42)
"اگر تم فیصلہ کرو تو ان کے درمیان کامل عدل و انصاف کے مطابق فیصلہ کرو بیشک اللہ تعالی عدل کرنے والوں سے محبت رکھتے ہیں۔"
ش: یہاں عدل کے بجائے لفظ قسط استعمال ہوا ہے ، قسط کے لغوی معنی ہیں ہر شخص کو اس کے حق کے مطابق اس کا حصہ مل جانا۔ یعنی عدل کی وہ کامل شکل جس میں ہر حقدار کو اس کا پورا پورا حق مل جائے۔ فیصلہ ایسا ہی ہونا چاہئے۔ عدل اور قسط میں فرق یہ ہے کہ عدل کے مفہوم میں محض برابری اور مساوات پیدا کر دینا ہے، جبکہ قسط کا مفہوم اس سے ذرا نازک تر اور دقیق تر ہے۔ اس کے معنی پوری پوری باریک بینی کے ساتھ حقوق کی ایسی تقسیم کہ ہر شخص کو اس کا جائز حصہ پورا پورا پہنچ جائے۔
2۔ قُلْ أَمَرَ رَبِّى بِٱلْقِسْطِ(الاعراف :29)
"آپ کہہ دیجئے کہ مجھے میرے رب نے کامل عدل و انصاف کرنے کا حکم دیا ہے"
3۔ إِنَّ ٱللَّهَ يَأْمُرُكُمْ أَن تُؤَدُّوا۟ ٱلْأَمَـٰنَـٰتِ إِلَىٰٓ أَهْلِهَا وَإِذَا حَكَمْتُم بَيْنَ ٱلنَّاسِ أَن تَحْكُمُوا۟ بِٱلْعَدْلِ ۚ إِنَّ ٱللَّهَ نِعِمَّا يَعِظُكُم بِهِۦٓ ۗ إِنَّ ٱللَّهَ كَانَ سَمِيعًۢا بَصِيرًۭا (النسائ : 58)
ج: بے شک تم کو اللہ تعالی اس بات کا حکم دیتے ہیں کہ اہل حقوق کو ان کے حقوق پہنچا دیا کرو۔ اور یہ کہ جب لوگوں کے درمیان فیصلہ کرو تو عدل سے فیصلہ کرو۔ بیشک اللہ تعالیٰ جس بات کی تم کو نصیحت کرتے ہیں وہ بات بہت اچھی ہے، بلاشبہ اللہ تعالی خوب سنتے ہیں خوب دیکھتے ہیں۔
ش: یہاں قسط کے بجائے عدل کا لفظ استعمال کیا گیا۔ عدل کم سے کم درجہ ہے جو فیصلوں میں ملحوظ رکھنا چاہئے۔ اس سے کم تر درجہ ظلم کا ہے اور بر تر درجہ قسط کا۔
While inching further on the proposition, we feel a pressing need to refer another verse from Holy Quran pertaining to justice which is reproduced hereunder:
اِنَّ اللّـٰهَ يَاْمُرُ بِالْعَدْلِ وَالْاِحْسَانِ (النحل :90)
"بیشک اللہ تعالیٰ حکم دیتے ہیں عدل کا احسان کا"
In the above verse, the expression ‘Adal Bil Ahsan’ is used which can be defined as ‘justice with mercy’. The concept of justice with mercy cannot be given effect in cases of brutal killings rather is a factor to be given effect in cases on lower pedestal in reference to their nature. Likewise, Adal Bil Ahsan is a choice given to individual victim/aggrieved litigant, who has the option to forgive or forego his claim. The concept of justice with mercy can best be understood from the following view expressed by Dr. Tanzeel-ur-Rehman in his book Islami Qawaneen Hadood, Qisas, Diyat wa Tazeerat:-
اگرچہ ہر شخص کے قلب میں طبعی طور پر رحمت خاصہ رکھی گئی ہے جو وہ اپنے عزیز واقارب اور میل جول رکھنے والوں کے لئے اپنے دل میں محسوس کرتا ہے لیکن جب ایسا موقع آجائے کہ رحمت خاصہ رحمت عامہ کے آڑے آئے، کسی ایک شخص کے حق میں شفقت معاشرہ کے لئے رحمت و شفقت کے آڑے آئے تو حاکم عدالت پر یہ فرض ہے کہ وہ عدل و انصاف سے کام لے اور رحمت خاصہ کو ترک کر کے معاشرہ کے حق میں رحمت کا سبب بنے۔ اگر وہ ایسانہ کرے گا تو سارے معاشرہ کے حق میں ظلم کرنے والا قرار پائے گا۔ اس لئے سید نا حضرت عمر فاروق رضی اللہ عنہ اگر چہ اپنی اولاد کے حق میں شفیق اور رحمدل باپ تھے لیکن ان کی رحمت خاصہ کا یہ جذبہ اپنے بیٹے پر اجراء حد (سو دروں کی سزا) میں مانع نہ ہو ا حتی کہ وہ بیٹیا اس سزا کے سبب ہلاک ہو گیا۔
The terms ‘Al-qiza bil Haq’ and ‘Adal-bil-Qist’ was also discussed by Dr. Asia Rasheed in her Research Paper Islamic Judiciary and Disposition of Testimonial Evidence and extract therefrom is being quoted hereunder:-
عدل کا مفہوم
آئمہ لغت نے عدل کے معنی القضاء بالحق بیان کئے ہیں یعنی حق کے مطابق فیصلہ کرنا اور قسط کے معنی ہیں النصیب یعنی حصہ اور حق دونوں کا حاصل مراد ایک ہے یعنی حقدار کو اس کا حق دلانا۔ انصاف کا لغوی معنی کسی چیز کو دو برابر حصوں میں تقسیم کر دینا مگر ہمارے ہاں یہ لفظ بالعموم عدل کے معنوں میں مستعمل ہے۔
We also consider expedient to shed light upon the importance of justice and the status of a judge/Qazi on doomsday in reference to the saying of Holy Prophet Muhammad ﷺ which are given below:-
"عن أبي هريرة، أن رسول الله صلى الله عليه وسلم قال : " سبعة يظلهم الله عز وجل يوم القيامة، يوم لا ظل إلا ظله إمام عادل " سات لوگوں کو اللہ تعالی قیامت کے دن سائے میں رکھے گا، جس دن کوئی سایہ نہ ہو گا ان میں ایک امام عادل بھی ہے۔ "
عالم قاضی کے بارے میں ارشاد فرمایا:
عن عبد الله بن أبي أوفى قال: قال رسول الله صلى الله عليه وسلم: «إنّ الله مع القاضي ما لم يجر، فإذا جار تخلى عنه ولزمه الشيطان "حضور صلى الله عليه وسلم نے فرمایا: اللہ اس وقت تک قاضی کے ساتھ رہتا ہے جب تک وہ ظلم و زیادتی نہ کرے اور جب راہ حق سے ہٹ جائے تو اللہ بھی اس کی مدد ہٹ جاتا ہے اور شیطان اس کو آن پکڑتا ہے"۔
21. After having examined with utmost circumspection every bit of the prosecution case, we have formed an inescapable conclusion that the guilt of Muhammad Faisal (appellant) is proved beyond scintilla of any doubt. In consequence thereof, we also embarked upon the defence put forth by Muhammad Faisal (appellant) and found it to be nothing but a lame excuse and jumble of lie, unworthy of any credence. In such an eventuality, it can irresistibly be encapsulated that the death sentence awarded to Muhammad Faisal (appellant) by the learned trial Court suffers from no perversity and calls for no indulgence on our part, thus the same is upheld on the same terms. Consequently, while maintaining conviction and sentence of Muhammad Faisal (appellant), we hold that Criminal Appeal No. 76 of 2020 filed by him has no merits, thus is dismissed. Resultantly, Murder Reference No. 14 of 2020 is answered in the AFFIRMATIVE and death sentence awarded to Muhammad Faisal (convict) is CONFIRMED.
(A.A.K.) Appeal dismissed
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