Muhammad Noor Meskanzai, J.--Through this common judgment, we intend to dispose of Criminal Appeal (S) No, 06 of 2007 filed by appellant Hasil Khan against his conviction recorded by Additional Sessions Judge, Dera Allah Yar dated 18th January, 2007, whereby; the appellant was convicted under Section 302 (b) P.P.0 to suffer life imprisonment with fine of Rs,50,000/- to be paid to the legal heirs of deceased as compensation or in default thereof to further undergo six months S.I. Benefit of Section 382-B Cr.P.C was also extended in favour of appellant. Besides this, Dil Murad complainant has also filed Criminal Revision Petition (S) No, 07 of 2007 being disagreed and dissatisfied with the quantum of sentence; with the prayer to enhance sentence and to impose/inflict sentence warranted by law i,e, death penally to the appellant.
2. Facts as gathered from record arc that on 20th May, 2006, FIR No, 21 of 2006 was lodged with Police Station, Cattle Farm on the report of one Dil Murad complainant. It was alleged in FIR that on 18th May, 2006, he alongwith his brother Saeed Bakhsh, nephew Zareef Khan, relatives Nabi Dad and other family members went to Kachhi Pul near Pat Feeder in order to attend marriage ceremony of one Masffooq Ali Chinjani. On 20th May, 2006, after attending marriage ceremony when complainant alongwith said relatives were coming back to their Goth Shabbir Khan Chalgari at about 12:00 noon, Bus stopped at Chalgari Dip, Hasil Khan (appellant) boarded in the bus and took out a T.T pistol from his waist and started" firing upon Saeed Bakhsh, in consequence whereof, Saeed Bakhsh, a kid Muhammad Bakhsh son of Nabi Dad and one lady Mst. Sher Bano wife of Abdul Samad received bullet injuries, thereafter; appellant fled away from the spot towards east and Saeed Bakhsh succumbed to the injuries at the spot. Motive behind the occurrence was stated to be that at Doba Pur Sindh, appellant had murdered his sister Mst. Sobhan on the pretext of `Siakari' with brother of complainant namely Sohna. It was also stated that since the complainant party were empty handed, therefore; could not chase accused, as and when Saeed Bakhsh was taken out from the said bus, he succumbed to his injuries. At the strength of this story, FIR was registered, investigation was carried out, appellant was arrested and incomplete Challan No, 22 of 2006 was filed before the Court of Additional Sessions Judge, Dera Allah Yar. Incomplete Challan No, 22-A was filed on 17th August, 2006 on the receipt of report of FSL, prosecution submitted another incomplete Challan No, 22-A on 17th August, 2006, whereas incomplete Challan Nos, 22-B and 22-C were submitted on 15th September, 2006 and 17th October, 2006 respectively, because medial certificates of victim Muhammad Bakhsh (minor) and Mst. Sher Bano were not available with prosecution, however; on the availability of initial certificates, these challans were submitted.
Charge was framed on 8th July, 2006, which was denied by appellant. Prosecution in order to substantiate the accusation produced 9 witnesses.
3. At the end of prosecution evidence, appellant was examined under Section 342 Cr.P.C, wherein; he denied all the allegations levelled by prosecution, however; he neither recorded his statement on oath as envisaged under Section 340(2) Cr.P.C nor produced any DWs in defence, except copy of judgment produced by the appellant in his statement recorded under Section 342 Cr.P.0 and the same was got exhibited as Ex.D/1-A.
4. On conclusion of trial, the learned Additional Sessions Judge, found the appellant guilty of the charge and sentenced him as mentioned hereinabove However, despite finding appellant guilty under Section 302(b) PPC, learned trial Court proposed lesser sentence at the strength of Ex.D/1-A by treating the same as a mitigating circumstance.
5. Being aggrieved with the conviction recorded by learned Additional Sessions Judge, Dera Allah Yar, appellant filed present appeal, whereas; complainant being dissatisfied with the quantum of sentence has called in question the legality of the quantum of sentence through Criminal Revision Petition (S) No,. 07 of 2007.
6. Mr. Kamran Murtaza, learned counsel for appellant submitted that the evidence on record have not been appreciated in its true perspective and undue weight has been given to the prosecution version, whereas contention of appellant has totally been ignored. This act on the part of learned trial Court was not justified. He further submitted that according to prosecution, incident took place in a bus, where numerous other passengers were also boarded in the bus and shops and hotels were also situated near the place of incident, but no independent witness was examined by prosecution during course of investigation, nor any other independent witness was associated with recovery of articles except the relatives of deceased, who were admittedly interested witnesses.
Third contention raised by learned counsel was that since statements of prosecution witnesses were contradictory and sufficient doubts have been created, but the same were not extending favour of appellant. He further submitted that even otherwise it is habit of complainant to involve the accused party in baseless case and this aspect was ignored by the trial Court. Learned counsel further mentioned that there was no direct evidence available on record and the judgment delivered is offended to provisions of Section 367 Cr.P.0 and the same is not a speaking judgment.
The learned trial Court has committed material irregularity by believing FSL report in respect of pistol and empties. He next contended that there is considerable delay in dispatching the articles to FSL and secondly empties and pistol have been sent together, which is illegal, hence learned counsel relied upon PCr.L.J 1997 stressed that prosecution has withheld the best evidence i,e, driver of the bus, which creates doubt in case of prosecution. Lastly he urged that sentence so awarded to appellant is very harsh, thus requested for acquittal of appellant.
7. On contrary counsel for. complainant Mr. Shah Muhammad Jatoi while controverting the stand taken by counsel for appellant, submitted that prosecution has succeeded to establish its case against the appellant beyond any shadow of doubt. He further submitted that despite lengthy cross-examination, no contradiction and improvement was brought on record. He further submitted that appellant has not only committed a cold blooded murder of an innocent person; but also he is equally guilty of committing offence under Section 324 PPC by injuring one minor Muhammad Bakhsh aged about five years and a female i,e, Mst. Sher Bano. The prosecution remained firm and consistent on its story during the trial but the learned trial Court illegally proposed lesser punishment, despite the fact that there was/is no justification for such lessor punishment. He further contended that in FIR clear motive of the offence was given and that was not at all denied nor disputed at any stage of proceedings, even up to the stage of arguments in this Court; that piece of evidence has not been disputed. He further contended that the appellant has committed murder of his sister namely Sohban without any rhyme or reason and in view of this undisputed fact, appellant is a habitual, hardened and desperate criminal by committing murder of two innocent persons and injuring two other persons, i,e, small kid and a lady named above, as such; appellant did not and does not deserve for any leniency. Lastly he prayed for enhancement of sentence i,e, death penalty and also to convict appellant and pass sentence under Section 324 PPC.
8. On the other hand, Mrs. Noor Jehan Kahoor, learned State counsel while opposing appeal, submitted that prosecution has proved its case to the hilt. There is no contradiction and improvement in the statements of PWs, nor any ambiguity has been found in those statements.
Furthermore counsel for appellant has not been able to point out any infirmity in statements of PWs, so she while opposing the appeal, supported revision petition filed by complainant and also prayed that the sentence so imposed is not in accordance with law and there is no justification nor any mitigating or extenuating circumstances justifying imposition of lesser punishment. Mr. Kamran Murtaza. learned counsel in reply to submission made by State counsel and counsel for complainant submitted that though appellant was charged under Section 324 PPC, but he was acquitted of that charge and no appeal by State or complainant was filed, therefore; no question of any sentence under Section 324 PPC, with regard to quantum of sentence, he submitted that on the basis of statement of interested and relative PWs, request for capital punishment is absolutely illegal, particularly so when there is a case of clear acquittal.
9. We have heard learned counsel for parties and have also gone through the available record carefully and minutely. The case of prosecution, according to PW-1, who is informant, stated that on 18th May, 2006, he along with Saeed Bakhsh, Nabi Dad, Zareef Khan and other family members/relatives went to attend marriage ceremony of one Mashooq Ali at Kachhi Pul. After attending marriage ceremony, on 20th May, 2006 when coming back by bus at about 12:00 noon on Chalgari Dip, bus stopped, Hasil Khan boarded in the bus and started firing with a T.T Pistol, in consequence whereof, Saeed Bakhsh sustained serious injuries and died on the spot, whereas; Muhammad Bakhsh minor kid and MA. Sher Bano sitting along with him were also injured. After firing Hasil Khan fled away from the scene towards East and Saeed Bakhsh was taken out of bus where he died. Motive behind the occurrence was stated to be "Siakari" as Hasil Khan has declared the brother of deceased as Siakar with his sister and on such context he has also committed murder of his sister and on account of that enmity, appellant has committed murder of brother of complainant. This witness exhibited FIR as Ex.P/1-A. There is no dispute with the fact that FIR was lodged with promptitude, incident took place at 12:00 noon and the FIR was lodged within 35 minutes and despite lengthy cross-examination, no contradiction and improvements were made by this PW. PW fully proved contents of FIR and narrated the actual story in a honest manner. It will not be out of place of mention here that motive as alleged in FIR narrated in the statement was not at all disputed. He denied the suggestion that accused was involved in this case on account of murder of one Jangi Khan:-- PW-2 Zareef Khan son of Muhammad Murad, who is also eyewitness of the incident stated that two days prior to 20th May, 2006, I along with Nabi Dad, Dil Murad, Saeed Bakhsh and other family members went to Kachhi Pul Patfeder in order to attend marriage ceremony of one Mashooq Ali.
He further stated that on 20th May, 2006, when they were coming back through a bus at 12:00 noon at Chalgari Dip bus stopped. Some persons boarded in the bus and some disembarked, in the meanwhile accused/appellant present in the Court, namely Hasil Khan boarded in the bus and made firing upon Saeed Bakhsh, already seated in the said bus, in consequence of said firing, Muhammad Bakhsh a little kid, Mst. Sher Bano and Saeed Bakhsh sustained injuries. Saeed Bakhsh, having received serious injuries, taken out from the bus, expired on the spot, thereafter; accused ran towards East. He further stated that thereafter Dil Murad went to Police Station for lodging of FIR, police officials came at the venue, inspected the site and prepared sketch, upon which he identified his signature and same was produced as Ex.P/2-B. This witness further stated that besides bloodstained earth, three empties were also taken into possession. He produced bloodstained parcel as Ex.P/2-C, which was Art:P/2-1 and at the request of D.A, same was opened, which was sealed with seal of FSL. Bloodstained earth was Art:P/2-2, recovery memo. of empties were exhibited as Ex.P/2-D, seal parcel of empties was produced as Art:P/2-3, which was opened at the request of D.A and the same was sealed with seal of FSL. Empties produced as Art:P/2-4 to Art:P/2-6. The witness stated that the accused/appellant present in the Court, committed murder of Saeed Bakhsh on the pretext of "Siakari". Accused has committed murder of his sister Soba.
Perusal of lengthy cross-examination over this witness reveals that neither there is any contradiction nor any improvement whatsoever in nature. PW-2 has fully corroborated PW-1 on each and every major and minor point. The statement is firm, consistent and confidence inspiring.
PW-3, who is an eye-witness stated that witness Dil Murad, Saeed Bakhsh and Zareef Khan alongwith other family members went to attend marriage ceremony of one Mashooq Ali. On 20th May, 2006 while they were coming back, after attending marriage ceremony, in a bus at 12:00 noon, when they reached Chalgari Dip, bus stopped there, some people boarded and some disembarked from the bus, in the meanwhile accused present in the Court i,e, Hasil Khan boarded in the bus and started firing upon Saeed Bakhsh, in consequence whereof Mst. Sher Bano, minor Muhammad Bakhsh and Saeed Bakhsh sustained injuries. Due to serious injuries sustained by Saeed Bakhsh was taken out the bus, where he expired and accused ran away towards East, whereas; Dil Murad went to Police Station for lodging of FIR. Police reached at the spot on 12:30 P.M, inspected the site, prepared recovery memo. This witness acknowledged his sign of thumb at the recovery memo. and produced those articles and exhibits, which were produced by PW-2. PW-3 stated that accused after declaring his sister and brother of deceased Sona Khan as Siakar.
Appellant has already committed murder of his sister Mst. Soban and with malafide intention committed murder of Saeed Bakhsh. PW-3 also corroborated PW-1 and PW-2 on each and every material points. There is no contradiction and improvement whatsoever in nature except he has stated that police arrived at the venue at 12:30, whereas; FIR was lodged at 12:35. Since PW-3 is illiterate person, therefore; this difference of time is not material and insufficient to discard the statement, nor it appears that witness has told lie at any stage of statement.
PW-4 Zafar Hussain stated that on 9th June, 2006, he was present at Police Station when SI, Safdar Ali brought the accused present in the Court for the purpose of investigation. The accused/appellant was brought in investigating room, where Safdar Ali, SI interrogated the accused. During course of interrogation, accused disclosed that pistol i,e, used by him in committing crime, could be recovered, which is lying in his residential room, which he has concealed under the quilts, so accused was taken to his house in hand cuffs. On reaching Goth, accused got estopped the vehicle, disembarked from the same, voluntarily led the police party to his residential room, where from beneath of quilts, took out the pistol and handed over the same to Safdar Ali, SI, who took it into possession vide recovery memo., which was produced as Ex.P/4. Since accused failed to produce any licence, therefore; letter for registration of case was written and pistol was sealed in parcel, which is produced as Art:P/4-7, same was opened at the request of D.A, which was sealed with seal of FSL. In cross-examination, witness admitted that he has not signed the parcel, however stated that accuse, made disclosure on 9:30 A.M. Further stated that accused was in custody 2/3 days prior to disclosure. On further perusal, there was no contradiction and improvement whatsoever in the statements of PWs-1 to 3. The witness remained firm upon his stance.
PW-5 Dr. Naseer Ahmed, who produced medical certificate as Ex.P/5-F and found following injuries on his person:--
(1) A circular entrance wound on the back side of the chest just between the right 1st and 2nd ribs (No exit wound)
(2) A circular entrance wound on the left lumbar region (No exit wound).
(3) A circular entrance wound on the right thigh.
(4) Exit wound on the right Glueteal region.
Witness remained firm upon his stance, however; this PW was again examined on 31st October, 2006 on the application moved by prosecution under Section 540 Cr.P.C. wherein he stated that he examined Muhammad Bakhsh little kid and found following injuries:--
(1) A circular entrance wound on the left foot near the little phalanx of the left foot.
PW-5 produced medical certificate as Ex.P/5-F(A) and only one question was put to him i,e, "I do not tell about distance of firing upon the injured".
PW-6 Dr. Naila Yasmeen, Medical Officer, DHQ Hospital, Dera Allah Yar produced initial certificate issued in respect of injured Mst. Sher Bano and stated that on 20th May, 2006 at about 2:30 P.M and found following injuries:-- INJURIES SUSTAINED BY MST. SHER BANO (INJURED)
(1) A lacerated entrance wound situated on left scapular region diameter% cm.
In reply to a question by defence, she stated that she could not tell about distance of firing upon injured and also she did not tell about the weapon used upon the injured. She produced medical certificate as Ex.P/6-G:-- PW-7 is constable Muhammad Khan, stated that on 20th May, 2006, he was posted at Police Station, Cattle Farm, on the same day Safdar Ali, SI along with witnesses went to Dera Allah Yar Hospital, where doctor handed over "Shalwar-Qameez" (shirt and trouser) of deceased Saeed Bakhsh to SI. The same were taken into possession vide recovery memo., which was produced as Ex.P/7-H and parcel so sealed was produced as Art:P/7-9, which was bearing seal of FSL and at the request of DA parcel was unsealed and half white "Shalwar-Qameez" were produced as Art:P/7-10 and Art:P/7-11. PW-8 is injured Sher Bano stated that six months ago, she was going to Chalgari Dip in a bus when accused boarded in the bus and gave a `Ialkara' to his enemy and made firing, in consequence whereof, he sustained injuries. During this firing she also sustained injuries. She did not identify the accused. She was declared hostile and admitted that she has made a statement before police on 20th May, 2006, but denied the story, which she had narrated in her statement recorded under Section 161 Cr.P.C. She also denied the suggestion that since she has compromised with accused outside of Court, therefore; she is making a false statement in order to save skin of accused. PW-9 Safdar Aii, SI, who is investigating officer of the case, stated that on 20th May, 2006, he was posted as SI at Cattle Farm Police Station. On the same day at the report of Dil Murad, SI/SHO lodged the FIR and entrusted investigation to him. He inspected the site, where dead body of deceased Saeed Bakhsh was lying in pool of blood. A kid namely Muhammad Bakhsh and one Mst.
Sher Bano were also, lying in injured condition. In presence of witnesses, site was inspected, sketch was drawn, which was produced as Ex.P/9-J and acknowledged his signatures upon the same.
Inquest report (Marg report) was prepared, which was produced as Ex.P/9-K, blood-stained earth was taken into possession and Parcel No, 1 was prepared, besides this three- empties were taken in to possession and Parcel No, 2 was prepared. The injuries were given `Naqsha-e-Mazroobi' i,e, memo. of injuries and were removed to hospital alongwith dead body. Statements of the witnesses were recorded at the spot and then left to search out accused. Accused was arrested on 26th May, 2006 and on his pointation on 9th June, 2006 weapon of offence i,e, T.T pistol was recovered from the house of accused, which was taken into possession through a recovery memo and Parcel No, 4 was prepared. Statements of PWs regarding recovery of pistol were recorded at the site and Murasala regarding lodging of case under Section 13-E Arms Ordinance was sent to Police Station, as accused failed to produce any license or permit of the same. Empties, bloodstained earth, wearing of deceased and weapon of offence were sent for chemical analysis. Challan has been prepared by Ghulam Sarwar SHO, which was produced by PW-9 as Ex.P/9- L. After receiving FSL report, incomplete challan regarding analysis of weapon was produced as Ex.P/9-M. Report of FSL pertaining to weapon was produced as Ex.P/9-N and analysis report pertaining to blood-stained clothes was produced as Ex.P/9-O. Incomplete challan to this extent was produced as Ex.P/9-P.
After receiving medical certificate, incomplete and complete challans were submitted in the Court, which were produced as Ex.P/9-Q and Ex.PJ9-R. This PW admitted that at the place of incident, hotel and shops were there. He further admitted that bus, in which deceased was murdered was not there. He further admitted that he did not record statement of any person at the site belonging to other tribes, however; statement of bus driver and injured Mst. Sher Bano were recorded by him.
He denied the suggestion that he has recorded statements of Mst. Sher Bano and driver at his own.
He stated that after giving "Naqsha-e-Mazroobi" to her and recording her statement, she was removed to hospital. He further stated that corpse was removed to hospital at 3:30 a.m and the statement of Zareef Khan and Nabi Dad were recorded at 2:00 a.m. He stated that he does not recollect that on what date empty and pistol were sent for chemical analysis. He denied the suggestion that he himself made firing through T.T pistol and then empty alongwith pistol were sent for chemical analysis. He admitted that people present at the site were not examined; voluntarily stated that he recorded statement of concerned persons. Appellant in his statement recorded under Section 342 Cr.P.0 denied the allegations leveled against him. In reply to Question No, 15, he stated that-- In reply to Question No, 17 he opted to produce DWs and in reply to last Question No, 18 what else he wants to say, he stated that:
10. Upon scrutiny of record, no list of witnesses was found to have been filed by appellant, however; case was adjouned for 4th December, 2006 for production of DWs. On that date again appellant failed to produce any DWs, however; request for a long adjournment was made in the interest of justice, request was exceeded to and case was fixed for 19th December, 2006. On that date again appellant failed to produce any DWs, therefore; case was fixed for 21st December, 2006 appellant did not produce any DW and requested for close of his side, therefore; request was allowed and arguments were heard on the same date. We have given our anxious thoughts to the contentions of learned counsel for the appellant. As far as first contention of learned counsel pertaining to mis- appreciation, misreading or non-reading of prosecution evidence is concerned, we do not subscribe to learned counsel for the appellant, a perusal, analization and appreciation of evidence leaves no room for doubt that admittedly PW-1, PW-2 and PW-3 are eye-witnesses of the incident, they have corroborated each other on every minor and major points except statement of PW-3, who mentioned arrival of police at venue as 12:30 with this exception there is no contradiction, no improvement or discrepancy in the statements of prosecution witnesses at all. The prosecution's eye-witnesses remained firm, they are consistent in their stand have not been shaken, despite lengthy cross-examination. So PWs-1,2 and 3 being eye-witnesses of the incident have rightly been believed by the learned Additional Sessions Judge and no exception can be taken at all.
11.As far as relationship of PWs with deceased are concerned, suffice it to observe that mere relationship, itself is not a ground to discard statement of eye-witnesses and particularly so when the witnesses are truthful, reliable and their statement is worthy of credence, therefore; in our considered opinion there is no misreading, non-reading or mis-appreciation of prosecution evidence by learned trial Court quo eye-witnesses.
12.In so far as non-examination of passengers, boarded at the relevant time in the bus or of a person residing where the incident took place, also loose force, as admittedly bus was not available at the site when police arrived, secondly since the incident has taken place in a bus, therefore; any person, if at all resident of the area where incident took place, has not seen the incident with his own eyes, therefore; there was no occasion for recording statement of such person. PWs 1,2 and 3 have not named any other person known to them, boarded in bus at that time, whose statement, according to defence was essential and liable to be recorded. Statement of bus driver was recorded under Section 161 Cr.P.C, though driver was subsequently dropped.
13.As far as third contention raised by learned counsel for the appellant regarding contradictions in statements are concerned, we are satisfied that in fact there is no discrepancy, contradiction or improvement in statements of eye-witnesses. Furthermore; the learned counsel failed to pinpoint a single contradiction or improvement amongst statements of prosecution witnesses. We have also minutely assessed the prosecution evidence, but have arrived at definite conclusion that there is no contradiction, improvement and discrepancy in statements of eyewitnesses, in fact eye- witnesses are natural, truthful, confidence inspiring, reliable and firm in their stand, have stuck to their gun are entirely consistent, hence contention so raised also fails for not finding support from record.
14.With regard to Contention No, 4 of learned counsel, suffice it to observe that this contention is weightless and legless, as complainant has nominated only one person with specific role, therefore; this submission is also of no avail. Contentions and arguments so raised by learned counsel are without substance, as there are three eye-witnesses, who are natural, were very much present at venue; rather accompanying deceased at the time of incident. Their statements were recorded within two hours of incident and were also nominated in the promptly lodge FIR. In these circumstances, contention of learned counsel for appellant has got no legal weight and thus is rejected. As far as objection with regard to recovery of crime weapon and delay of sending of the same to FSL is concerned, this contention does not find legal support for various reasons, firstly that the recovery of crime weapon was affected in consequence of disclosure made by accused, therefore; non-association of private witnesses is immaterial; secondly the safe custody of these articles were never disputed and challenged and thirdly this piece of statement is not sole piece of statement, which has been believed for conviction; rather the same has been treated as corroboratofy evidence, hence we are unable to agree with this submission of appellant.
15.The next limb of argument i,e, non-production of best evidence i,e, driver of the bus also does not lend any support to the case of appellant. There is no cavil with the legal proposition that solitary statement is sufficient to record major penalty, if the statement rings true. Here in this case, prosecution has produced three PWs i,e, PWs-1, 2 and 3, who are natural, truthful, honest, reliable and could not be shaken by the defence, despite lengthy cross-examination. Moreover; there is no law, which binds the prosecution to adduce all the witnesses mentioned in calendar of witnesses.
In our considered opinion this is idiosyncrasy of prosecution as to, it remains satisfied with what number of witnesses, legally quality matters and not the quantity, however; in this case prosecution has produced all three eye-witnesses, therefore; in our estimation, the number is more than sufficient.
16.The last submission by learned counsel with regard to quantum of sentence we will be dealing with the submission at the eve of dilating upon Criminal Revision Petition No, 07 of 2007, since facts have already been narrated in the appeal, therefore; need not be repeated, so in the light of above discussion and for the reasons recorded herein below, we are inclined to accept the revision petition and enhance the sentence from life imprisonment to that of death, in other words, the learned trial Court has committed material illegality while proposing lesser sentence for various reasons. Firstly prosecution has proved its case to the hilt, there was no rhyme or reason for awarding lesser punishment. At the very outset, we are inclined to hold that the contention of counsel for appellant has got sufficient force that appellant was acquitted of the charge under Section 324 PPC and no appeal was preferred by complainant or State, therefore; to that extent matter has attained finality. Request of Mr. Shah Muhammad Jatoi, counsel for complainant regarding passing of sentence under Section 324 PPC is rejected, for not filing any appeal against acquittal under Section 324 PPC which has attained finality. The learned trial Court proposed lesser punishment at the strength of Ex.P/1-A, we observe that trial Court erred in law by exhibiting a document through a person, who is neither author of document nor party to it nor is the custodian of same. So the document was neither entertainable nor could have been received in evidence.
Ex.D/1-A is liable to be ruled out of consideration, which was wrongly entertained in evidence and treated as a mitigating circumstance for lesser punishment. Notwithstanding above legal infirmities, we perused Ex.D/1-A, same does not render any support to the version of offence nor makes out a case for commutation of sentence.
17. We are of firm opinion that prosecution has established the charge beyond any doubt. Ocular account furnished by PWs-1,2 and 3 which finds complete support and full corroboration from medical certificate Ex.P/5-F and undisputed motive has proved that respondent (convict) has committed a premeditated, intentional and cold blooded murder of an innocent person i,e, Saeed Bakhsh through a barbaric act and in brutal manner not only the murder of Saeed Bakhsh, rather murder of sister namely Mst. Sohban sister of appellant, causing injuries by firearm to two innocent person by appellant are established admitted facts for committing murder of Mst. Sohban and causing injuries to a little kid Muhammad Bakhsh and Mst. Sher Bano, no punishment was awarded by any Court.
18. So in such situation, let us see what the Holy Quran says. The Holy Quran in Paara No, 5 Sura Nisa IV in Verse No, 93 says "If a man kills a Believer Intentionally, his recompense Is Hell, to abide therein (For ever): and the wrath And the curse of Allah Are upon him, and A dreadful penalty Is prepared".
19. So, we are clear in our mind, one who, by his evil, ugly, barbaric, unfair, execrable act (commission of murder) thereby violates the law of land and disobeys the Devine Law, not only renders himself liable for perpetual punishment, looses the mercies, deserves curse and wrath of Almighty Allah The Creater, becomes deprived of sympathies of all The Creatures. On the pretext of alleged unfounded, unproved and baseless allegation i,e, Siakar/Karo-Kari, which is a menace for society, no one can be given a blank cheque and permit/license to commit murder of any one whom he likes to kill or to quench the thirst of enmity on such pretext.
20. Murder cases must be seen with reference of society and to curb is the need of hour. One of the objects of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crime and in this way also to serve a stern warning to those members of society, who have behavioural learning towards criminality.
21. By now this is settled law, normal penalty of death should follow when prosecution succeeds in proving case. Avoiding deterrent punishment is a factor, which indirectly contributes to incident of crimes, normal sentence in murder cases should not be altered on flimsy grounds. Learned trial Court illegally entertained a document without formal proof, exhibited the same in illegal manner and treated as an extenuating circumstance for imposition of lesser punishment. This conduct of lower Court is disapproved and depreciated, in fact quantum of sentence proposed by lower forum is contrary to law and observations of Hon'ble Supreme Court made in cases reported in 1999 NLR (Crl: cases) S.0 540, wherein; it was held as under:-- "S. 302. Normal penalty of death prescribed for murder should follow when prosecution succeeds in proving case against accused person beyond reasonable doubt. Supreme Court disapproves hesitancy and inhibition on part of Courts to award sentence of death in cases u/S. 302 and their efforts to find laboured pretext to alter death sentence to life imprisonment."
By taking the view for enhancement of life imprisonment to normal punishment i,e, death under Section 302 (b) PPC, we are supported by following judgments:--
(1) PLD 2007 SC P-80 (2) PLD 1975 SC P-227
(3) PLD 1976 SC P-452 (4) PLD 2000 SC. P-12
(5) PLD 2001 SC 465 (6) SCM R 1999 P-2028
(7) SCM R 2001 P-1750 (8) MLD (CRL.) 1995 SC P-540
22. In the light of above discussion, we have no hesitation in holding that there was no mitigating and extenuating circumstance at all, warranting the commutation of sentence. Since appellant Hasil Khan son of Rab Dina has committed a premeditated, intentional cold blooded murder of an innocent person, therefore; he deserves the normal penalty as provided under Section 302 (b) PPC i,e, death sentence. Sentence of life imprisoment awarded to appellant Hasil Khan vide judgment dated 18th January, 2007 passed by Additional Sessions Judge, Dera Allah Yar is hereby enhanced to death sentence. Convict/appellant Hasil Khan shall be hanged by his neck till he is dead. With this modification in the quantum of sentence, impugned judgment is maintained with the result that Criminal Appeal (S) No, 06 of 2007 is dismissed and Criminal Revision Petition (S) No, 07 of 2007 filed by complainant Dil Murad is accepted.