' NAZIR AHMED BHATT1,1.-- Noorul Haq, appellant herein, has been convicted under section 302, P.P.C.
By the Sessions Judge, Mardan on 21-3-1988 and sentenced to death. The learned Sessions Judge has forwarded the present Murder Reference No, lit of 1988 for confirmation of sentence by this Court. The convict Noorul Haq has also challenged the conviction and sentence by Criminal Appeal No, 57 of 1988. Both the murder reference and the criminal appeal have been heard together and judgment in the aforesaid murder reference will also dispose of the Criminal Appeal No, 57 of 1988.
2. Before we proceed with the murder reference we have been called upon to adjudicate upon an application submitted by the learned counsel for the appellant today according to which the appellant withdraws from the appeal. This application has been signed by Abdul Samad, brother of the appellant and it also bears his affidavit to the effect that the appellant has instructed him not to pursue the appeal any further. The learned counsel for the appellant has, therefore, A sought our permission to withdraw the appeal and also for his own withdrawal therefrom.
The appeal was filed under section 423, Cr.P.C. It has been brought to our notice that in the case of Zulfiqar Ali Bhutto v. State PLD 1979 SC 38 Mr. Justice Dorab Patel, the then Judge of the Supreme Court and a learned Member of the Bench which heard the said appeal was of the opinion (page 504) that there was no provision under the Criminal Procedure Code under which an appeal could be withdrawn after it had been admitted to regular hearing. In this respect the factual position is that long after arguments had commenced in the appeals of that case the counsel of Mian Abbas, one of the convicts, informed the Court that Mian Abbas had changed his mind and pleaded guilty to the charges against him and therefore, he withdrew from the appeal and the learned Judge of the Supreme Court Mr. Justice Dorab Patel was of the opinion that there was no provision under the Criminal Procedure Code under which an appeal could be withdrawn after it had been admitted to regular hearing. However, the Supreme Court had already held in the case of Muhammad Aslam v.
The State PLD 1959 SC 199 that a convicted person could withdraw his appeal against conviction. It has been held in that case that, 'so far as an appeal by a convicted person is concerned he is as much at liberty to withdraw it as he was at liberty to file it, and in such cases the obvious duty of the High Court is to dismiss the appeal. If, however, the High Court considers that an order or finding recorded in appeal should be set aside, or a or the sentence enhanced, the proper course for it is to act on the revision side'. In the latter case the earlier view that once an appeal against conviction had been admitted it could not be withdrawn was overruled and it was held that the convict was at liberty to withdraw his 1B appeal against conviction any time and there was no legal bar on his such right to ! Withdraw the appeal. It appears that the latter case was not brought to the knowledge of Mr. Justice Dorab Patel the learned Judge of the Supreme Court. It may also be mentioned with great humility and respect that the opinion about this matter expressed in the case of Mr. Zulfiqar Ali Bhutto was of the Single learned Judge of the Supreme Court whereas the case of Muhammad Aslam v. The State' PLD 1959 SC 119 was heard and decided by five learned Judges of the Supreme c Court. We are, therefore, bound to follow the principle laid down in the case of Muhammad Aslam v. The State and we permit the appellant to withdraw the appeal and the same stands dismissed as withdrawn.
' However, we have to proceed in the matter because a murder reference I has also been forwarded to this Court by the learned Sessions Judge, Mardan who tried the appellant and convicted and sentenced him to death. It has been laid down in section 374, Cr.P.C. That when the Court of Sessions passes the sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court and under section 376, Cr.P.C. The High Court in any case submitted under section 374, Cr.P.C.
(a) may confirm the sentence, or pass any other sentence warranted by law, G or
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or
(c) may acquit the accused person: ' Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if, an .Appeal is presented within such period, until such appeal is disposed of."
3. It shall thus he seen that although the convict has withdrawn his appeal, yet we have to proceed in the matter for the simple reason that a murderlIf reference has been received from the Sessions Judge who tried the convict.
4. Deceased Fazal Haleem was taken to the Police Station Shahbaz Garh on 6-7-1981 at 1415 hours in injured condition where he reported that at 1330 hours he was present in the house. Of Khani Kaka. His aunt Mst. Bano and his wife Mst. Mukhtara were also present. In the meantime appellant Noorul Haq came there and fired a Topak shot at him with which he was hit on the back. This report was recorded in F.I.R. No, 186 of Police Station Shahbaz Garh. The motive for the offence was that the sister of the deceased had been abducted by Rizwanullah son of the accused. The complainant signed this report in English whereafter he was taken to the hospital but he succumbed to his injuries shortly thereafter and a telephone in this respect was received in the police station at 230/3-00 p.m. By P.W.2 Fazli Mabood F.C. The appellant was accused of the offence under section 302, P.P.C. But after the occurrence he absconded. It appears that he had committed some other offence in respect of which he was arrested on 15-5-1985 and was arrested in the case in hand on 18-5-1985. The appellant was sent up for trial before the learned Sessions Judge, Mardan where he was charged under section 302, P.P.C. For the murder of Fazal Halcem to which he pleaded not guilty and claimed trial. The State produced ten witnesses in proof of the prosecution case out of whom P.W.6 Mst. Mukhtara widow of the deceased is the only eye-witness of the occurrence while F.I.R. No, 186 was treated as a dying declaration.
4-A. The post-mortem of the dead body of Fazal Haleem complainant was performed by P.W.5 Dr. Abdur Rchman Khan on 6-7-198.1 at 16-10 hours and he found the following external injuries:-
(1) Fire-arth entrance wound just below the umblicus on front of abdomen; 2" x2'
(2) Fire-arm exit wound back of abdomen, right to the vertebral column at 3rd lumber vertebrae 1/2" x 1/2".
' On internal examination the doctor found abdominal walls, peritonium, small intestines, large intestines and right kidney injured. In the opinion of the doctor death occurred due to shock and haemorrhage caused by fire-arm injuries. The doctor recovered three pellets from back of abdomen. The shirt and Banyan worn by the complainant were having charring marks and corresponding marks of injuries alongwith Shalwar also having marks of injuries. Time between injury and death was within two hours. In cross-examination the doctor further stated that it was not necessary that the injured person would have gone into immediate shock and coma. P.W.6 Mst.
Mukhtara widow of the deceased stated that on the day of occurrence she and Mst. Bano (the other eye-witness of the occurrence but subsequently abandoned as having been won over) were standing in the Veranda of the house of Mst. Bano. It was noon time and in the meanwhile she saw her husband Fazal Haleem coming in a quick pace from outside. He passed by her and scaled the wall of the house of one Latif. After sometime the deceased again came to the house where she was present and the appellant came from the street and entering the house fired at her husband one shot with a Topak. Her husband got hit and she and Mst. Bano raised hue and cries whereupon people from the surrounding locality arrived and her husband was put on a cot and taken to the police station in injured condition. In cross-examination she stated that her husband was at a distance of about 2/3 paces from the appellant at the time of fire shot. She has further stated that at about 3-00 p.m. The Investigating Officer came to the spot and he first recorded her statement and then he inspected the spot at her instance.
5. It has also come in the evidence of this witness that the parties are related to each other and the appellant is a cousin of her deceased husband. She also disclosed th6 motive according to which Mst. Mohsina sister of her husband was abducted by Rizwanullah son of the appellant and the police had recovered her while Rizwanullah was arrested. The dying declaration made by the deceased also clearly charges the appellant for the commission of the offence of his murder.
6. However, after the perusal of the record we find that the dying declaration does not disclose the entire truth and circumstances of the occurrence. On the contrary the testimony of Mst. Mukhtara will show that her husband was being chased by the appellant and the former first tried to take I refuge in the adjacent house but then came back therefrom and in the meantime he was fired at by the appellant. There is the circumstance of abduction of sister I of the deceased by the son of the appellant. We have very anxiously considered ID the circumstance of abduction of the sister of the deceased by the son of the! Appellant and the testimony of Mst. Mukhtara at the trial and we have come to the conclusion that the occurrence did not take place in the manner as disclosed I in the dying declaration of the deceased. The latter had rushed into the house of Khani Kaka and then he scaled the wall and entered the other house which was I definitely to take refuge as he was being followed by the appellant. This circumstance would disclose that something had suddenly transpired between the deceased and the appellant as a result of which the occurrence took place.
7. The appellant in his statement under section 342, Cr.P.C. Denied the commission of the offence.
He also refused to appear as a witness on oath but there is overwhelming evidence against him to prove his guilt. There is the dying declaration made by the deceased who was in possession of his senses at that time. There is the evidence of the widow of the deceased which also is very strong and corroborates the contents of the dying declaration. It is a case of a single accused. There is no question of any substitution of assailant. The parties are closely inter-related which also excludes the possibility of any false charge. The appellant remained fugitive from law for about four years and he failed to furnish any reasonable explanation for his abscondence which is also a factor going in proof of the offence.
8. We are, therefore, of the considered opinion that the occurrence took place suddenly and the offence committed by the appellant did not warrant the extreme punishment of death. There were clear extenuating circumstances in favour of the lesser penalty of imprisonment for life. Since under section 376, Cr.P.C. As aforesaid we have the power either to confirm the sentence or to pass any other sentence warranted by law, we will, therefore, decline to confirm the sentence of death and would instead while upholding the conviction of the accused alter the sentence to that of imprisonment for life. The appellant shall also pay a fine of Rs,10,000 in default whereolhe shall further undergo R.I. For two years. The appellant shall also pay an amount of Rs,5,000 as compensation to the legal heirs of the deceased in default whereof he shall further undergo simple imprisonment for six months. .