' TARIQ PARVEZ KHAN, J.---These appeals, by leave, involving same F.I.R., are being decided by this common judgment.
2. In Criminal Petition No,8 of 2007, leave was granted to consider that in view of judgment reported as Nasir Shah v. The State 2006 SCM R 1796, wherein on the basis of a single fire shot sentence of death in a murder case was confirmed.
3. The petition has now been enlisted as Criminal Appeal No,21 of 2007.
' Connected Criminal Petition No,39 of 2007, wherein accused has asked for to set aside the order of sentence.
4. Story as reflected in the F.I.R., made by Subedar (Retd.) Abdul Majeed is to the effect that he along with Asghar Majeed his deceased son who was a High School teacher both were busy in their routine work in their field. Complainant was erecting bushes fences while his deceased son Asghar Majeed was grazing the cattle and so was Saleem Akhtar, P.W. It is alleged that Mulazim Hussain Shah came to the spot armed with .12 bore double barrel shot-gun and after raising shout that he has come to take the revenge for disgrace of his mother, fired a shot with which Asghar Majeed son of complainant was hit and died.
' Motive of the crime was that two days prior to the occurrence deceased and Mst. Riaz Bibi mother of accused appellant had exchanged abuses when cattle of the accused party entered into the fields of the complainant party.
5. Learned counsel appearing for the appellant has argued that complainant Subedar (Retd.)
Abdul Majeed (P.W.10) is not an eyewitness because it is not a case of prosecution that the son and the father have gone together to the fields and in fact son has allegedly followed, and, if a young son was present why the old father who is above 60 years of the age would be doing hard labour i,e, affixing fences. It was his next argument that when the Investigating Officer went to the spot he was not pointed out the bushes to be used for erecting fences. Learned counsel has also argued that the medical evidence does not confirm the ocular testimony and in fact contradicts the same.
6. Finally, it was argued that the sentence awarded by the High Court after commuting the death into life imprisonment would not be sustainable because if the accused has acted under the impulse of provocation because of disgrace to his mother or he was suspected to have illicit relations of deceased with his sister, in either case the case would fall within the scope of section 302(c), P.P.C.
7. Learned counsel appearing in Criminal Appeal No,21 of 2007 .Has argued that accused appellant has acted in a predetermined manner. If at all his mother was disgraced that was not at the time of occurrence nor immediately before but two days before the occurrence. Learned counsel argued that movement accused would learn, he would start nourishing enmity viz. The deceased and he was looking for a chance to cause the death, therefore, crime is predetermined which would deserve no leniency in the sentence. Learned counsel has also argued that the mere fact that single fire shot was made would not be a legal ground for awarding lesser sentence. He relied on: Miss Najiba and another v. Ahmed Sultan alias Sattar 2001 SCM R 988, Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCM R 1676, Ali Gohar v. State 1996 SCM R 549, Moazam Shah v. Mohsan Shan and another PLD 2001 SC 458, Shahid Ghafoor v. The State 2007 SCM R 1338, Zulfiqar Ali v. The State 2008 SCM R 796, Nasir Shah v. The State 2006 SCM R 1796 and mainly on judgment reported Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427.
8. After we heard the learned counsel for the parties and after' we have scrutinized the entire prosecution evidence we find that besides Subedar (Reid.) Abdul Majeed, another eye--witness by the name Saleem Akhtar had appeared as P.W.11 this witness has supported the charge against the accused appellant and has got no enmity of any kind with the appellant.
9. The submissions that in presence of a young son father would not do hard labour, our reply is that according to the evidence deceased's son was a High School teacher where as the father was a Zamindar, such work is to be carried out normally by person used to such nature of job. As for contradictions in medical evidence, our reply is that since before making fire shot accused appellant has raised Lalkara, the deceased would not stand like a statue. The ocular account furnished by two eyewitnesses is supported by medical evidence and circumstantial evidence and in absence of blood feud and in a case of single and substitution would be rare phenomena.
10. Main question before us in this case is that whether the High Court was right to convert the death sentence awarded by the learned Sessions Judge to life imprisonment.
11. We would ordinarily agree and we are of the view that the person accused of murder has to be awarded sentence of death which is normal punishment but the legislature in its wisdom has provided both the sentences in the same section by stating that offence of qatl-i-amd shall be liable to punishment of death or imprisonment for life. The provision for inserting punishment for imprisonment for life has to be seen objectively as to why it was deemed proper that for the same offence two different sentences were provided.
12. It is clear by now through fully developed case-law that offence of qatl-i-amd committed by an accused person has to be adjudged. Keeping in view different circumstances, such as what weapon is used, the motive and the manner crime was committed etc.
13. We have gone through the case-law cited by the learned counsel for the complainant but as is commonly known and rightly so that facts and circumstances of two criminal cases can never be the same.
14. In case of Moazam Shah (supra), there was a grabbling between the deceased and the accused but five months before the killing. In case of Shahid Ghafoor (supra), it was an 'argument advanced before the Court that accused appellant remained undefended as was not represented through counsel up to the High Court stage. Same was rebutted as such argument did not find mention even in the petition filed before this Court. Moreover there were two accused nominated and one accused with whom there was motive was acquitted, the question was as to why accused/appellant would take the life of the deceased to whom he had no reason to kill.
15. In the case of Zulfiqar Ali (supra), it was a case of single shot and it was held that it would not be a ground for lesser sentence but that was a case of absence of motive and motive alleged was weak. In case of Nasir Shah (supra), it was held that knowledge and proof of motive would not be a ground for the lesser sentence.
16. In case of Miss Najiba and another (supra), this Court enhanced the sentence on the ground that both the Courts below without giving single reason went on to awarded life imprisonment. The case reported in Federal Government Ministry of Defence (supra), was not a regular criminal case tried under the Cr.P.C., but trial was held under the Army Act through Field General Court Martial which sentence was challenged through writ petition by filing constitutional petition before the High Court, therefore not relevant.
17. Coming to the main judgment which is in the case of Syed Hamid Mukhtar Shah (supra). No doubt that this Court has ruled that single fire shot, cannot be a ground for lesser sentence but their lordships of this Court have also dilated upon on the factum of insufficient motive.
18. Coming to the present case, we find that facts and circumstances of this case are totally different from the above cited judgments.
19. No son under the impulse that his mother was abused, and one can imagine that what abuses might have been used by a male against a female that is mother of the appellant and appellant under such impulse could not constrain himself followed by his act of single fire shot at the deceased will be a case which would not be fit for awarding normal punishment of death. Further to simplify we hold that in this case the person aggrieved and annoyed because his mother was abused must by under constant stress to each lesson to the person abusing his mother and under such circumstances has committed the offence. He, in circumstances has rightly been awarded life imprisonment by the High Court.
20. For the above discussion, we hold that charge of qatl-i-amd is proved against the appellant and sentence awarded by the High Court is appropriate. Both these appeals are, therefore, dismissed.