MALIK HAQ NAWAZ, J.---The instant Cr. Revision bearing No. 4/2017 has been filed under section 439, Cr.P.C. against the judgment/order dated 25-09-2017, passed by the learned Additional Sessions Judge Gilgit in Sessions case No.03/2015, whereby a verdict of guilt has been handed down by the learned trial Court, but the State being dissatisfied from the impugned judgment has filed the instant revision for enhancement of the sentence of the respondent from life imprisonment to death.
2. The learned Dy. Advocate General stated that the punishment awarded to the respondent under section 302(a) is incorrect and against the law. The learned Dy. Advocate General submitted that when the case was proved by the prosecution, there was no legal justification available with the learned trial Court to award lesser punishment of life imprisonment. The learned Dy. Advocate General lastly submitted that if exemplary punishment will not be awarded to the criminals involved in such like crimes, the whole of the society will suffer, as leniency in punishment will be moral boosting factor for future for desperate and hard core criminals.
3. On the other hand the learned counsel for the respondent submitted that there is no worth reliance evidence available on record to connect the respondent/accused with the alleged crime. The learned counsel further submitted that the statement of the deceased recorded by the police has wrongly been treated as "dying declaration" by the learned trial Court. The statement of respondent has wrongly been given undue weightage by the learned trial Court. The learned counsel further submitted that the statement of PW-3 Muhammad Ghavas in the trial Court, falsifies the whole the prosecution story , which aspect went un-noticed by the trial Court while handing down the judgment in the instant case. The recoveries are also planted and cannot be used as a corroboratory piece of evidence. Lastly that due to financial constraints the accused failed to engage a counsel in the trial Court and also have not filed an appeal against his conviction otherwise it was a case of clean acquittal.
The learned counsel prays that the sentence awarded to the respondent is appropriate and there are no sufficient reasons to enhance the same.
4. We heard the learned counsel for the parties at length and perused the entire record, made part of the file and the record requisitioned from the trial Court also examined.
5. As evident from the record prosecution examined 15 PWs in order to prove the case. The trial Court after conclusion of trial awarded following punishment to the respondent. Para 18 of the impugned judgment is relevant, which is re-produced for ready reference:- "18. In the light of what has been discussed above, accused Akash Khan alias Kashi son of Fida Hussain is convicted in Session case No.03/2015 vide FIR No.01/2015 of P . S City Gilgit as under:- A. He is convicted and sentenced to life imprisonment under section 302(b), P.P.C. and also directed to pay sum of Rs.500000/- (Rupees five lac) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to suffer six month's S.I. and the amount shall be recoverable from his immovable property and other assets as arrears of land revenue.
B. Accused is also convicted under section 392, P.P.C. and sentenced to rigorous imprisonment for five (05) years with fine Rs.25000/- and in default thereof to suf fer three months simple imprisonment.
C. All the sentences are ordered to run concurrently and accused shall be entitled for the benefit of section 382-B, Cr.P.C."
6. As evident from the record the stateme nt of deceased Abdul Rehman under section 161, Cr.P.C. was recorded by the I.O. on 04.03.2015 and he died on 20-03-2017. The last statement of the deceased could validly be treated as "dying declaration" if the mind of the Court was satisfied that the deceased was in a stable condition to make a coherent statement and the dying declara tion was free from outside influence. Defence during cross-examination of PW-3 got it clarified that the deceased was in stable condition and was also able to talk. The said facts have been highlighted by the learned trial Court in para 14 of the impugned judgment. The recoveries of incriminating articles i.e. blood stained stone Ex. PW-5/A, Mobile, coat and an amount of Rs.16000/- (sixteen thousand) have been recovered from the respondent in presence of a Magistrate and marginal witness, who fully supported the case of prosecution during trial. These types of recoveries are admissible under Article 40 of Qanun-e-Shahadat, 1984 and could be treated as corroboratory pieces of evidence.
7. As well as the question of sentence is concerned, we came to the conclusion that it was a case of circumstantial evidence, and no direct evidence is available on record except a statement of the deceased recorded by the police under section 161, Cr.P.C. In cases of circumstantial evidence only, the sentence of death is normally not awarded unless and until some exceptional and strong circumstances are available to do so. The respondent has not filed any appeal against his conviction for the reasons best known to him. Neither any jail appeal has been submitted by the respondent.
8. We may mention here that the learned Dy.A.G. has quoted wrong provisions of law, while submitting the instant revision petition. The learned Dy.A.G. has mentioned that the respondent was convicted under section 302(a), P.P.C., whereas the respondent was conv icted under section 302(b), P.P.C., by the trial Court as evident from the impugned judgment.
9. There seems no justification to enhance the sentence of the respondent and we maintain the judgment/order of learned trial Court in toto.
10. The revision petition filed by the learned Dy.A.G. for enhancement of the sentence of the respondent is dismissed being meritless.