' CH. IFTIKHAR HUSSAIN, J.---Appellant Zafar Ahmad through the above-mentioned Appeal (No. 1034 of 1999) has challenged his conviction and sentence recorded vide the judgment delivered on 30- 9-1999 by Mr. Allah Bukhsh Ranjha, learned Additional Sessions, Judge, Lahore in case F.I.R. No.72 registered under section 302, P.P.C. With Police Station Secretariat Islamabad on 16-9-1986.
2. He vide the said judgment has been convicted under section 302(b), P.P.C. And sentenced to death subject to confirmation by this Court and to pay fine of Rs.500 and in default to suffer one month's S.I. And also to pay compensation Rs.50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default thereof to undergo further six month's S.I.
3. The learned trial Court has submitted the Murder Reference mentioned above (No.417 of 1999) for confirmation of his sentence of death as required under section 374, Cr.P.C.
4. As both these matters have arisen out of the impugned judgment in the case, hence are being disposed of by this single judgment.
5. The brief facts relevant for the disposal of these matters are that the said case has been registered on the statement Exh.P.A. Of Sagheer Hussain, A.S.-I. Traffic Police, Islamabad (P.W.1) on 16-9-1986.
6. He has mentioned therein that on that day i.e. 16-9-1986 at about 1-30 p.m. He was present on traffic patrol duty at Dhokari Chowk, Islamabad. He heard the report of fire from Fowara Morr near the Foreign Office. He on the official motorcyle reached there. Musarrat Ali, S.I. Traffic police on motorcyle also reached there after him. Hefound there the Car No.CD 62-43. He saw that on the driver's seat a foreigner in serious injured condition was present and he was bleeding profusely from the head. He was in the lap of a foreigner lady sitting on the front side of the same. On the rear seat a girl aged about 10/12 years was crying. A boy with hand bag was running there from towards the Foreign Office. The Lady pointed out towards him as the assailant. He, thereupon, chased that boy on the motorcycle. He also saw the security guards, of the Foreign Office namely Ghulam Farid, Head Constable No.3065, Muhammad Liaqat, F.C. No.3066, Shah Farooq, F.C. No.2731 and few other persons coming towards that side. They stopped the boy on his reaching there and apprehended him. The boy told his name as Zafar Ahmad son of Mubarak Ahmad, caste Arian resident of 407-A, Rehman Pura Colony, Muslim Town Ferozepur Road, Lahore. The police control was informed about the incident through wireless. The name of the injured persons was known as Mr. Gorenkov, Assistant Military Attache of the Russian Embassy. Musarrat Ali, S.I. Sent the injured Military Attache to the hospital in a car under the escort of traffic constable Nazar Hayat and Altaf. He also followed them to the hospital. On reaching there, he learnt that the injured has succumbed to his injuries.
7. The appellant after due investigation was challaned to the Court.. He was tried under section 302, P.P.C. By the learned Sessions Judge, Islamabad. He convicted him under section 302(b), P.P.C. And sentenced to death and to pay Rs.5,000 and also compensation Rs.10,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Vide his judgment dated 1-7-1987.
8. He challenged his conviction and sentence through the Appeal No.107 of 1987. The learned Division Bench at Rawalpindi Bench of this Court accepted his appeal and set aside his conviction and sentence and remitted the case to the learned Sessions Judge, Islamabad for holding his trial afresh in accordance with law after providing him legal assistance.
9. The Hon'ble Chief Justice in Criminal Miscellaneous Petition No.195-T of 1999 had ordered the transfer of the case. To the Court of Mr. Sabah Mohyuddin Khan, the then learned Additional Sessions Judge, Lahore. The case, therefore, stood transferred to the other Courts.
10. He was afresh formally charged under section 302, P.P.C. On 18-12-1995. He pleaded not guilty.
11. The prosecution at his trial examined its 20 witnesses. They were Sagheer Hussain, S.I. (P.W.1), Muhammad Jahangir, S.I. (P.W.2),. Muhammad Ilyas, H.C. (P.W.3), Muhammad Liaqat-C (P.W.4),Muhammad Arif-C (P.W.5), Dr. Sultan Deedar Bhatti (P.W.6), Dr. Kafeel Ahmad Qureshi (P.W.7), Khalid Rasool, Inspector FIA (P.W.8),' Musarrat Ali, Inspector (P.W.9), Muhammad Akram, Draftsman (P.W.10), Arif Nadeem DC Jhang (P.W.11), Abdul Qayyum (P.W.12), Nazar Hayat-C (P.W.13); Ghulam Farid-C (Retd.) (P.W.14), Malik Tariq Rahim (P.W.15), Muhammad Latif, Security Guard (P.W.16), Muhammad Ayub (P.W.17), M.A. Farooqi, DSP (P.W.18), Tanveer Babar, Inspector (P.W.19) and Muhammad Sharif, A.S.-I. (P.W.20).
12. The report of the Chemical Examiner Exh.PBB and that of the Serologist Exh.PCC and the Fire-arm Expert Exh.PDD and of the Handwriting Expert Exh.PEE were tendered in the evidene.
13. The appellant in his examination under section 342, Cr.P.C. Denied the allegation appearing against him in the prosecution evidence and also the recovery of crime-weapon pistol P.5 at his pointation. He pleaded as follows:-- "During the days of occurrence the Afghan war was in full swing. The deceased was Russian Consular and was working against Afghanis and also against the Pakistan, as Pakistan was supporting the Afghanis. The deceased was killed by someone else. I was not mentally fit in the days of occurrence. My whole family including my father is patient of Schizophrenia. I was admitted in mental hospital, Lahore for this disease in the year December, 1980 and this fact was verified by Dr. Mrs. Nusrat Habib Rana who appeared as C.W.-1 in this Court on 30-6-1994. Certificate in this respect is Exh.CW/A. I was made the scapegoat taking the benefit of my mental ill-health. I have been falsely involved in this case.
' The P.Ws. Are all police officials. The real witness i.e. The wife of the deceased who was sitting besides the deceased at the time of occurrence categorically made her statement under section 164, Cr.P.C. That the person who killed her husband was of different appearance and different physique. She did not identify me as an accused before the Magistrate. I have been involved by the police to show their efficiency in this respect."
14. He, however, neither opted to produce evidence in defence nor to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
15. The learned trial Court after hearing the parties found him guilty of the Qatl-i-Amd of the deceased Military Attache of the Russian Embassy and convicted and sentenced him as stated above.
16. He has felt aggrieved of his conviction and sentence and so has assailed the same by way of the instant appeal as mentioned above.
17. It has been argued on his behalf that there is no direct evidence. Against him on the record and the prosecution has merely relied upon circumstantial evidence of the officials of the traffic police and the security guards of the Foreign Office and the same could easily be procured to give stand to the prosecution case; that though such an evidence can be made basis of conviction of an accused but all its chains must on the record tightly led to the hypothesis of guilt of accused and when it may not be. So, then benefit of doubt is to be given to accused, that the circumstantial evidence has not been corroborated by any independent evidence and so he was entitled to acquittal on benefit of doubt and in this regard reference has been made to the case of Syed Ali Shah alias Shahji v. The State (1993 PCr.LJ 1118 Karachi); that the motive set up by the prosecution could not be proved against him satisfactorily and so this was again a circumstance leaving room to entertain doubt qua his involvement in the matter but the learned trial Court has ignored this aspect erroneously; that the recovery of the crime weapon pistol P.5 at his pointation was not free from doubt and so the same could not be used as of any corroborative value to the circumstantial evidence on the record; that the evidence of the Handwriting Expert in respect of the questioned documents i.e. Bloodstained piece of paper recovered from the car of the deceased and his signature on the register of Lala Zar Hotel, Rawalpindi was not such thing to provide corroboration to the circumstantial evidence on the. Record against him; that the widow of the deceased and his daughter, who was aged about 10/12 years at the relevant time have not been produced in the evidence against him and the withholding by the prosecution to be produced in the evidence against him was a suspicious circumstance qua the veracity of the prosecution as they both had seen the incident with their own eyes; that the daughter of the deceased being of the age of 12113 could be a competent witness as it has so been held in the cases of Muhammad Ismail and another v. The State (1995 SCMR 1615) and that of Mst. Shamshad v. The State (1998 SCMR 854); that he was not mentally sound at the time of the occurrence and was suffering from mental ailment and so was not capable of making his defence at the trial and this aspect has erroneously been ignored by the learned trial Court; that the medical evidence is not supportive of the circumstancial evidence against him on the record; that the widow of the deceased in her statement Exh.P.G before Arif Nadeem P.W. Has not identified him as the actual assailant of the deceased and so his involvement in the case was highly doubtful; that the prosecution as its evidence on the record has failed to bring home the guilt to him; and in any case his sentence istoo severe to be maintained in the facts and circumstances of the case as he has suffered detention as an under trial and convict for about seventeen years and this is a considerably long period of one's detention in jail in such capacities.
18. As against the same, the leaned State Counsel has supported the impugned judgment saying that the prosecution as per its circumstantial. Evidence on the record furnished by the independent witnesses and corroborated by the medical evidence, the recovery of crime weapon pistol P.5 at appellant's pointation and the report of Forensic Science Laboratory Exh.PDD and the evidence of Khalid Rasool, Inspector, FIA, Islamabad in respect of the blood-stained questioned document Mark-A/1 to be in his hand and the signature on the questioned register Mark-C/1 to be of him has established his guilt on the record beyond any shadow of reasonable doubt; that the widow and the daughter of the deceased after the incident had flown back to their country and so their attendance could not be procured without delay and expense and, thus their non-production was in no way damaging to the prosecution; that though he during the trial has pleaded himself to be of unsound mind but it was actually not so and he rather very actively has participated in the proceedings before the learned trial Court; and that in any case his conviction and sentence is perfectly alright as he has killed a Foreign Diplomat without any lawful excuse.
19. We have carefully considered the submission made from both the sides with the help of the available record.
20: No doubt there is no direct evidence available on the record against the appellant but the prosecution has relied upon its circumstantial evidence against him. It in this regard has produced Sagheer Hussain, S.I. (P.W.1), Muhammad Liaqat, C (P.W.4). Musarraf Ali, Inspector (P.W.9) and Ghulam Farid-C (Redt) (P.W.14).
21. Sagheer Hussain, S.I. Has stated that on 16-9-1986 at about 1-30 p.m. He was present at Dhokari Chowk, Islamabad on patrol duty on his official motorcycle. On the report of the .Fire, he reached Fowara Chowk, Soharwardi Road and saw there Car No.CD 62-43 parked opposite the road and on driver's seat a Foreigner was lying injured with his head in the lap of a foreigner lady sitting on the front seat of the same and on the rear seat a foreign girl aged about 12/13 years was sitting and crying. The foreign lady through signal pointed out towards the north and explained that the murderer has ran towards the Foreign Office. He immediately went towards that side on official motorcyle and saw a person running at a distance of about 900 feet from there. He when reached near him the security guards namely Farooq Shah, Muhammad Liaqat and Ghulam Farid came there and they apprehended that person. In the meanwhile, he also reached there andsaw the man, who was holding a small hand bag of black colour and raising an alarm and saying that he may be saved as he has murdered a Russian Consular. In the meanwhile, Inspector, M.A. Farooqi also reached there and they informed the wireless control about the incident and apprehended that person, who disclosed his name as Zafar Ahmad son of Mubarak Ahmad resident of Rehman Pura, Lahore. He handed over him to Inspector M.A. Farooqi. In the meanwhile, Musarrat Ali, S.I.
Traffic also reached there.
22. His evidence, thus shows that he at the relevant time was present .On the traffic patrol duty close to the place of occurrence. He on the report of the fire had reached there and the widow of the deceased by visible representation had pointed out towards the appellant, who was running towards the north and the Foreign Office as the assailant, who had fired at her deceased husband.
He thereafter chased that person and when he reached close to him, he already stood apprehended by the afore-mentioned security guards of the Foreign Office. The assailant told his name as mentioned above.
23. So, the scenerio was that the assailant signalled the deceased to stop the car at the road. He when stopped the car, he came close to him and gave him a piece of paper, who started reading the same and in the meanwhile he pulled out the pistol and fired with the same at him and thereafter started running towards the Foreign Office. The witness, who was present close by to that place and the security guards of the Foreign Office on the report of fire apprehended the appellant.
He at that time was saying that he should be saved as he has killed a Russian diplomat.
24. The witness was a traffic police official at Islamabad. He has explained that he was on duty there at that time. It was mid part of the day. He could be on the duty there at the time. On the report of the fire, he if had chased the appellant, it was a probable act on his part. The appellant was apprehended by the security guards at some distance from the place of occurrence. The story, thus put forth by the witness seems confidence-inspiring. He had no animus at all with the appellant. The appellant belongs to Lahore. The witness was posted at Islamabad. The presence of the appellant at the spot is proved from the fact that he was apprehended at a place close by to the same. The witness, thus despite the fact that he was a police official could have no motive to falsely depose against him. His account of the occurrence, therefore, was in most natural sequence of the happening of the same. There has been found no reason at all to disbelieve him. He to us has appeared to be an absolutely reliable witness. He, therefdre, was rightly relied upon by the learned trial Court. We endorse its view in this respect.
25. He has fully been supported by Muhammad Liaqat, Constable (P.W.4), Musarrat Ali, Inspector (P.W.9) and Ghulam Farid, Constable (Retd.) (P.W.14).
26. Muhammad Liaqat, Constable has stated that he on the relevant day was on the duty at the outer gate of the Foreign Office. He heard the report of fire from the Constitution Avenue. He came out of the building and saw that a boy was coming from the side from where he had heard the report of fire and Sagheer Hussain, A.S.-I. Was chasing him on the motorcycle and the said boy was the appellant. He has further stated that the appellant shouted that he has murdered a Russian Safaratkar by fire with pistol on him and so he may be saved. He was apprehended. He told his name as Zafar Ahmad son of Mubarek Ahmad resident of Rehman Pura, Lahore. He has identified the appellant in the trial Court* as the person, who was seen by him running from the place where the fire was made and they apprehended him and he told them that he has murdered a Russian diplomat by firing on him. By his evidence there has been left nothing about the identity of the appellant as the murderer of the deceased. He too did not have any motive or animus to falsely depose against him. His testimony too could not be discarded merely for the reason that he was a police constable. We have found nothing in his evidence to say that he had any interest or motive to falsely depose against the appellant.
27. Musarrat Ali, Inspector has also stated on the similar lines. He has also followed Sagheer Hussain, A.S.-I. On the motorcycle and when he reached close to the appellant, he already stood apprehended by the security guards of the Foreign Office. He has clearly stated that the appellant told his name as Zafar Ahmad. So, from his evidence too the identity of the appellant as the person, who assaulted upon the deceased stood proved completely. He too appears to have no motive or animus to falsely involve the appellant or to depose against him. He too was traffic police official on the duty close to the place of occurrence. He also on the report of the fire had reached there and chased the appellant behind Sagheer Hussain, A.S.-I. When he was running from the spot after firing at the deceased. So, he too could be said to be a natural witness of the incident. There has been found no reason at all to disbelieve him on that aspect of the matter.
28. The similar is the position of the evidence of Ghulam Farid, Police Constable (Retd). He too has fully supported the testimony of Sagheer, Hussain, S.I. And the other P.Ws. Regarding the occurrence. According to him, he was on the guard duty at the main gate of the Foreign Office on 16-9-1986 at about 1-30 p.m. He, Liaqat Ali and Shah Farooq P.Ws. Heard the fire report coming from the southern side. In the meanwhile, the appellant came running there and was saying thathe may be saved as the Russian could kill him for having murdered a Russian. He and the other guards caught hold of him and handed over to Sagheer Hussain, A.S.-I. And he disclosed his name as Zafar Ahmad son of Mubarik Ahmad resident of Rehman Pura, Lahore. He remained there for sometime and then S.H.O. Took the appellant into his custody. So, as per his evidence, he happened to see the appellant close to the place of occurrence after the incident and the appellant has stated before them that he has killed a Russian Diplomat and he also disclosed his complete identity before them. He too has identified him before the learned trial Court. He too did not have any reason to falsely depose against him. He too, therefore, was a reliable witness.
29. Hence, from the above discussed evidence of these four independent prosecution witnesses, it has been established beyond any doubt that the appellant soon after firing at the deceased was seen running by them and they apprehended him and he disclosed before them that he has killed the deceased. It, thus from their evidence stood fully proved on the record that it was the appellant, who in fact had fired at the deceased and he died as a result of the same and they had apprehended him soon thereafter at a close by place. Their evidence, thus is with intrinsic worth and so was reliable. The learned trial Court, therefore, has rightly relied upon them.
30. The medical evidence has lent full support to the circumstantial evidence furnished by the afore-mentioned four P.Ws. On the record.
Dr. Sultan Deedar Bhatti (P.W.6) had conducted autopsy on the dead body of the deceased and he found the following external injuries on the same.
(i) Wound of entry: A 2 cm x .5 cm wound at the medial border of right eye (Inner canthus) edges inverted. No blackening around the wound.
(ii) A 1 cm in diameter irregular wound above the right tempro mandibular joint just above the right tragus. Margins of the wound were inverted. No blackening around the wound. Wound of Exit: A- 2 cm diameter circular hole at the angle of right mandible. Edges of the wound were averted. A lacerated wound 2 cm long at the right masolabial area communicating with that of buckle cavity.
Wound of Entry:
(1) The wound No.1 caused injury to the upper right orbit, area around the cribriform plate of the ethomoid bone upper right jaw, right mandible at the angle breaking the teeth (right upper and lower premolar and molar teeth).
' In his opinion all these injuries were anti-mortem and caused by fire-arm. The death was immediate and the post-mortem was within four hours of the same.
31. The occurrence had taken place at 1-30 p.m. On the eventful day. The autopsy on the dead body, was conducted at 4-30 p.m. The same day. So, the duration, of the injuries of the deceased was almost the same as has appeared in the circumstantial evidence furnished by the four P.Ws.
Here it may be mentioned that it was argued by the appellant's side that there is conflict in the medical evidence and the circumstantial evidence inasmuch as that there were at least two injuries on the dead body of the deceased while according to the circumstantial evidence only one fire was made at the deceased. This contention is without force because the afore-mentioned P.Ws., who have furnished the circumstantial evidence have not seen the appellant firing at the deceased. They as per their showing became attentive to the place wherefrom the report of fire was heard of. They have not at all said that only one fire was made at the deceased. It was the widow of the deceased and his daughter, who had actually seen the occurrence. They had not entered the witness-box to narrate the same. We will discuss this aspect of the matter later on.
However, here it will be suffice to say that none from the afore-mentioned four P.Ws. Had seen the number of fire shots made at the deceased. So, how they could say that one or more fires had been made at him. So, there is absolutely no conflict on the medical evidence and the circumstantial evidence. The contention in this regard is absolutely without any force and the same is repelled.
32. The medical evidence as said above has fully established that the death of the deceased had occurred due to the fire-arm injuries found on his dead body and the time of infliction of the same has tallied with the time of the occurrence as appeared in the evidence of the aforementioned four P.Ws. This is a strong piece of evidence in support to the circumstantial evidence against the appellant.
33. The appellant as per the evidence of Muhammad Ayub (P.W.17) and Muhammad Shafi, A.S.-I.
(P.W.20) had led to the recovery of pistol P.5/1 from the hand bag after opening its zip and crime empty p.5 was also recovered from the spot.
34. They appeared to be absolutely independent witnesses. There.Had been found no reason with them to falsely depose against the appellant. The recovery of the crime weapon and the said empty stood established by their evidence on the record. There has been found nothing in their evidence to doubt this recovery. It is a further strong corroborative piece of evidence to the circumstantial evidence against the appellant. The contention of the appellant's side in respect of the same is absolutely without any force and the same is repelled.
35. The report Exh.PDD of the Fire-arm Expert in this regard is positive. The expert has opined that crime empty was fired from the pistol. This report has lent further corroboration to the circumstantial evidence against the appellant that he with the said pistol had fired at the deceased, who died as a consequence of the same.
36. The presence of the appellant in Rawalpindi and Islamabad prior to the occurrence has been established by the evidence of Muhammad Latif (P.W.16), the Munshi of Lalazar Hotel, Rawalpindi at the time. According to him, on 14-9-1986 at 10-15 p.m., the appellant came to their hotel and got booked room there. Further according to him, on 14-12-1986, the police came to their hotel and took into possession the register of the hotel. He too has identified the appellant as the person, who stayed in their hotel. He had no enmity at all with the appellant to depose falsely against him. He, therefore, on that count is a reliable witness. His evidence has established that the appellant prior to the occurrence was in Rawalpindi and Islamabad and possibly for such design.
37. According to M.A. Farooqi DSP/Investigating Officer (P.W.18), he took into possession the Paper P.4 lying at the floor of the said car in between the front seats of the same. This is the paper which according to the prosecution was waived by the appellant to get the car of the deceased stopped.
According to the witness some writing in English was there on the same. The evidence of Khalid Rasool, Inspector, FIA (P.W.8) has established that the handwriting on the said paper had tallied with the specimen of writing Exh.PB-1 to PB-3 of the appellant. According to the evidence of Arif Nadeem, DC, Jhang, the English writing of the appellant Exh.B-1, Exh.B-2 and Exh.B-3 was taken before him. So, it has been, established that the paper containing writing was found from the car of the deceased soon after the occurrence and it was of the appellant. This goes long way to establish his guilt in the murder of the deceased.
38. Khalid Rasool, Inspector has alsO stated that the signature on the register Mark-C/1 were similar to that of the specimen signature Exh.P.1 to Exh.P.K. According to the evidence of Malik Tariq Raheem (P.W.15), he had obtained these specimen signatures of the appellant. This again goes to show that the appellant prior to the occurrence had stayed in the aforesaid hotel and he had signed the register of the same in token thereof.
39. All this evidence has clearly established beyond any shadow of reasonable doubt that the appellant has committed the murder of the deceased on the above-said date, time and place.
40. As regards the contention that the prosecution has not been able to prove the motive behind the occurrence against the appellant, the same is without any force. The appellant is a Pakistani.
The deceased was a Foreign Diplomat. It is in the evidence that in those days Afghan War was going on in full swing. He possibly having been influenced by the same has chosen to kill a Russian, who were directly involved in that war opposed to the Afghanis/the Muslims. Any way, motive in fact remains hidden in the mind of criminal. In such like affairs, it is hard to know the actual motive which plays as a factor in the killing of other. It, however, may be mentioned here that absence of motive now is no ground to dislodge prosecution completely. Anyway, the prosecution has succeeded to prove that it was the appellant, who had killed the deceased. Hence, the contention raised on behalf of the appellant regarding the non-proof of the motive is repelled. The case of Liaqat Ali and another v. The State (PLD 1999 Lahore 56) and Muhammad Ashraf v. The State (1996 PCr.LJ 165 Lahore), therefore; are not applicable to the instant case.
41. The widow and the daughter of the deceased were theforeigners. The deceased was working in Russian Embassy at Islamabad. These ladies after his death had no occasion to stay in Pakistan.
They must have flown back to their country and that is why they could not be produced by the prosecution in the evidence. Such an indication is available from the record. We have taken judicial notice of the same. Hence, the non-production of these ladies in the evidence was not at all fatal to the prosecution. The contention in this regard is without any force. The same is repelled.
42. As regards the contention that the widow of the deceased in her statement Exh.P.O. Recorded by Arif Nadeem (P.W.11) has given the description of the assailant and the same did not tally with that of the appellant. The same is without force. The lady had not appeared in the .Witness-box at the trial of the appellant. Her mother tongue may be Russian. She had seen the assailant for a shortwhile. How she under the sense of grief and sorrow could correctly recollect his feature accurately. Even otherwise, she when has not appeared in the witness-box and her said statement has not been put to her, it then how could be said that the features of the assailant given by her in the same (Exh.P.O.) were not taken to that of the appellant. The appellant in these circumstances, could not get benefit of her said statement (Exh.P.O.). The contention in this regard, therefore, is repelled.
43. The daughter of the deceased though as per the evidence wasaged about 12/13 years at the time of incident. She but appeared to have flown back to her country with her mother after the murder of her father. She then how could be produced by the prosecution in the evidence. Hence, her non-production as the witness could be of no adverse effect to the prosecution case. The contention of the appellant's side as regards her competence to testify as a witness, thus is meaningless. The same,' therefore, is repelled. The case of Muhammad Ismail and another v. The State (1995 SCMR 1615), therefore, is not applicable in the instant case for the above-stated reason.
44. As regards the contention regarding the mental ailment of the appellant, the same is without force as it has appeared that the appellant has joined the proceedings during two rounds of the trial in the quiet manner. The learned trial Judge did not notice any abnormality in his behavour during the same as appears from the record. The learned counsel for the appellant has pointed out that as per the evidence of Dr. Mrs. Nusrat Habib Rana as CW-1 and CW-2, he has suffered mental ailment. The mental ailment of the appellant, if before the occurrence was there, the same did not carry any effect as it has not affected his trial. He during the same has appeared to have been capable of making his defence properly. He during the trial has defended himself completely.
He has answered the charge adequately. He has denied the same. He has made the lengthy statement under section 342, Cr.P.C. During the trial number of witnesses stood examined in his case. During all this period, his behaviour has remained normal. The plea, thus seems to have been advanced perhaps to save the skin. The_ same, therefore, is of no avail to him. The contention, therefore, is repelled.
45. As a result of the above discussion, we have been constrained to hold that the prosecution has amply proved the guilt of the appellant on the record. He, therefore, has rightly been convicted under section 302(b), P.P.C. We maintain his conviction.
46. As regards the quantum of sentence, we have found that he has faced the agony of two rounds of trial. He as the under trial and convict suffered detention in this case for more than 17 years. This is a long period of one's detention in these capacities. The law provides two sentences for the Qatl- i-Amd. The Court has to see that whether extreme penalty or lesser can be in accord with the norms of justice in a given case.
47. Due to his such long detention, we feel that extreme penalty of death in his case could be too much. We, therefore, find this extraordinary extenuating circumstances in his case. We, therefore, exercise our discretion in the matter of sentence to him for safe administration of justice. We convert his sentence to one for imprisonment for life from death. The same in our considered view will adequately meet the ends of justice.
48. We have also found that the learned trial Court has awarded him sentence of fine Rs.500. Such sentence is not provided for the offence under section 302(b), P.P.C. We, therefore, set aside the same. However, the amount of compensation under section 544-A, Cr.P.C. Payable by him to the legal heirs of the deceased shall be same as directed by the leaned trial Court. He shall, however, be given the benefit of section 382-B, Cr.P.C.
49. With the above conversion in his sentence, we dismiss his appeal.
50. His death sentence is not confirmed. The Murder Reference is answered in the negative.