JUDGMENT QAISAR AHMAD HAMIDI, J.- Appellant Zafar Ali (Cr. Appeal No. 41 of 1989) was tried by Mr. Mehboob Ahmad Siddiqui, Sessions Judge Tharparkar at Mirpurkhas for committing the murder of Muhammad Nawaz by means of hatchet, an offence punishable under section 302, P.P.C, who found him guilty and vide judgment dated 14.2.1989 sentenced him to imprisonment for life and to pay a fine of Rs. 5000/- (Rs. Five thousand) or in default to suffer R.I. For six months. The appellant was further directed to pay a sum of Rs. 10,000/- (Rs. Ten thousand) as compensation to legal heir of deceased Muhammad Nawaz or in default to suffer R.I. For six months. By this appeal (Cr. Appeal No. 41 of 1989) the appellant has challenged his conviction and sentence.
2. Being aggrieved and dissatisfied with the quantum of sentence awarded to Zafar Ali, the appellant in Cr. Appeal No. 41 of 1989, and respondent No. 2 in Cr. Revision Application No. 63 of 1989, applicant Muhammad Afzal, brother of deceased Muhammad Nawaz filed Cr. Revision Application No. 63 of 1989, with, the prayer that the sentence awarded to Zafar Ali may be enhanced.
3. Both Cr. Appeal No. 41 of 1989 and Cr. Revision Application No. 63 of 1989 were. Heard by a Division Bench consisting of Salahuddin Mirza, J. And M. Hussan Adil Khatri, J. Who agreed for the dismissal of Cr. Appeal No. 41 of 1989. There was, however, disagreement between the two on the question of sentence. Salahuddin Mirza J. Was of the view that the appropriate sentence in this case was death, while M. Hussan Adil Khatri, J. Maintained the sentence awarded to appellant Zafar Ali by the Trial Court. It was in these circumstances that this case was referred to me.
4. Since there is agreement between Salahuddin Mirza, J. And M. Hussan Adil Khatri, J. On the dismissal of Cr. Appeal ^[o. 41 of 1989, the same is dismissed.
5. I now proceed to decide the question of quantum of sentence awarded to appellant Zafar Ali.
There arc certain facts and circumstances in this case which are not in dispute. These are:- "
(i) Deceased Muhammad Nawaz distantly related to appellant Zafar Ali.
(ii) The shop of deceased Muhammad Nawaz was adjacent to the house of appellant Zafar Ali.
(iii) There was no previous hostility between the parties and the unfortunate incident took place over the repair of outlet for water (PARNALA).
(i) On the day of incident there was exchange of hot words between the parties in the morning time over the repair of pld outlet for water (PARNALA).
(ii) On the day of incident, viz. 3.7.1984 at 5. p.m. Deceased Muhammad Nawaz mounted over the roof for fixing the PARNALA which resulted into this incident.
(iii) None of the eye-witnesses was in a position to say what factual developments took place on the roof between deceased Muhammad , Nawaz and appt. Lanl Zafar Ali-
(iv) Deceased Muhammad Nawaz was given five injuries by means of hatchet out of which three were individually sufficient to cause death.
6. Some of these factors were taken into consideration by the learned Sessions Judge while awarding lesser punishment to appellant in the following words:- "It has been discussed above that the very ocular piece of evidence relied by the prosecution inspires confidence. The presence of eyewitnesses at the wardat cannot be doubted for the reason that report was lodged promptly and eye-witnesses examined immediately after recording of FIR.
The only mitigating circumstances are to be looked into while recording conviction. All the eye- witnesses in their natural tone have admitted in cross-examination that there was no enmity between the accused and deceased prior to the incident, except that on the same day at morning time differences arose over fixing the rain water pipe on the roof. All the eye-witnesses have admitted that they will not be in a position to say what factual developments took place on the roof between deceased and accused. They naturally were incapable to know as to how the incident developed on the roof resulting murder of deceased. Admittedly the house of accused is adjoining to the shop of deceased. Deceased was found on the roof. Many contributing factors can be responsible for the murder. One of the factor can be not only causing annoyance to accused for fixing the rain water pipe for the purpose of flow of water to the cattle pen of accused but also the indecency of coming on the roof. Under such mitigating circumstances accused deserves a lesser punishment."
7. The view taken by the learned Sessions Judge found favour with my learned brother M. Hussan Adil Khatri, J. Who was pleased to observe as follows:- "In this case there was no enmity between the parties. There was no motive behind the murder.
There is no evidence as to what happened at the spur of the moment, that is, immediately before the occurrence that made the appellant of react with violence resulting in death of the victim. But looking at several factors, it cannot be ruled out that the above act of the appellant must have been caused due to some sort of provocation. Firstly the deceased knowing it fully well that the appellant was deadly against the refixing of pamala at the old place, adopted challenging altitude, secondly the appellant was residing in the house alongwith his wife and daughter and as such the unannounced appearance of a relative, not within prohibitory degree (on the contrary the appellant disowned the alleged relationship with the deceased) on the roof of the shop, exposed the women folk to the deceased, thirdly the possibility that the deceased might have acted in the manner or used such language which might have injured the feelings and self respect of the appellants. All these factors combined together or any of them independently of others could be the cause of sudden and grave provocation to the appellant. Had there been evidence of sudden and grave provocation. First Exception (When culpable homicide is not murder) to Section 300, PPC would have been attracted. Nonetheless due benefit of the provocation, even if one has to argue that it was short of grave, is to be extended to the appellant."
8. My learned brother Salahuddin Mirza, J. However took an extreme view and he was released to reject the grounds taken by learned Sessions Judge for awarding lesse punishment to appellant for the following reasons:- As for Criminal Revision filed by the complainant for enhancement of the sentence from life imprisonment to that of death, we find that section 302, PPC provides that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. It is a settled principle of law that when a person is convicted oi an offence of murder he should ordinarily be-punished with death unless there are mitigating circumstances entitling the accused to the lessor punishment of imprisonment for life. However, learned Sessions Judge while finding the appellant guilty for an offence punishable under section 302, PPC has straight-away sentenced him to imprisonment for life and fine of Rs. 5000/- without referring to any mitigating circumstances which in his opinion entitled the appellant to the lessor penalty provided under the law. However, he had earlier, in paras I6 and 17 of his judgment (Pages 26 and 27 of the judgment) made some cryptic observations to the effect that the only mitigating circumstances are to be looked into while recording conviction." He then observed that eye-witnesses and "admitted in cross-examination that there was no enmity between the accused and deceased prior to the incident, with the exception of the incident in the morning of the day of murder, and that all the eye-witnesses had "admitted" that they did not know the "factual development" on the roof at the time of murder and that witnesses did not "naturally know" as to how the incident developed on the roof and that house of the accused was admittedly adjacent to the shop of the deceased and therefore "many contributing factors" could be responsible for the murder. Learned Sessions Judge then gave his own opinion, which clearly fits in the definition of "conjectures and surmises", that going up the roof of his own shop was an "indecent act" of the deceased which might have annoyed the deceased. He did not clearly say that all the above-noted factors amounted to "mitigating circumstances" but apparently, while proceeding to award the sentence, he proceeded on that assumption. In our view none of these factors can be considered as "mitigating circumstances". The very fact that there was no previous enmity between the deceased and Zafar Ali goes to enhance the enormity of the crime, It was also not a case of sudden fight as the dispute had erupted in the morning and Zafar Ali was nursing grudge since then. There is also no need for the eye-witnesses to know the "factual developments on the roof at the time of murder." What factual developments learned Sessions Judge was expecting to have developed on the roof? As is clear from the evidence of the eyewitnesses, Zafar Ali was at the Job within 5 or 6 minutes after the deceased left the shop for going up the roof. Taking into account a couple of minutes which the deceased must have taken in going up the roof and some further time in which Zafar Ali came to know that the deceased was on the roof, there was hardly any time left for the so- called "factual development" to take place on the roof. We also fail to comprehend how one's going up the roof of one's shop for its repair can amount to an "indecent act," and when even respondent Zafar Ali had not said so, it was un-warranted on the part of learned Sessions Judge to raise such a conjecture at his own, A further conclusion of the learned Sessions Judge that "many contributing factors" could be responsible for the murder is equally un-warranted. He should have disclosed these contributing factors. In our view there was no contributing factor whatsoever and the only cause for the commission of the murder was that the deceased, on every plausible and rational ground, wanted to re-fix the parnala of his shop on the same old place but respondent Zafar Ali objected on the ground that its water fell in his cattle-pen.
There was no enmity between the deceased and the appellant, they were neighbours and even descendants of a common ancestor as shown in the earlier part of the judgment. Only a minor dispute arose between them on the repairing of the pemala over the roof of the shop of the deceascd and the appellant felt that it should not be fixed at the old place because its water fell in his cattle pen. The reason given by the deceased for its fixing at the old place was that the flow of the roof would only admit of the fixing of the 'pemala' on that place or else the water would not flow out because of the slope of the roof. This was quite a reasonable stand taken by the deceased. The dispute was of such a minor nature that it could have been settled without much difficulty and in any case the murder of the deceased on such a petty account cannot be justified on any ground."
9. While summing up Salahuddin Mirza, J., observed as under:- "Under these circumstances we are of the considered view that in the absence of any mitigating circumstances and in the presence of clear proof of the respondent acting extremely cruelly while assaulting the deceased, the awarding of lesser punishment of imprisonment for life was uncalled for and amounted to negation of justice and that he appropriate sentence to be awarded to respondent Zafar Ali, is that of death. We would therefore accept the Revisions application and enhance the sentence from life-imprisonment to death and accordingly order that respondent Zafar Ali shall be hanged till he dies. The sentence of fine, awarded by learned Sessions Judge, stands as it is."
10. Obviously, therefore. Salahuddin Mir/.a, J., was of the view that punishment is, before all things, deterrent, and the chief end of the law of crime is to make the evil doer an example and a warning to all that are like minded with him. In the words of Salmond:-- "If a man is destitute pf the affections and social instincts of humanity, the judgment of common sense upon him is not that he should be treated more leniently that the normal evil doer-not, the society should cherish him in the hope of making him a good citizen-but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others." (Jurisprudence page 119).
11. The object of punishment is not revenge but the protection of society. Some thing which is done suddenly cannot be treated at par with an act done after due deliberation. Indeed, there can be no fixed formula and no generalisation is possible in such cases. The admitted facts mentioned in para 5 above, however, lend support to the view taken by M. ^Hussan Adil Khatri, J., which is further confirmed from the cases of Iqbal Hussan Shah v. Fazal Shah and another, reported in 1971 S.C.M.R.
377, Slier Daraz Khan v. The State, reported in 1983 S.C.M.R.266, Mukhtar Ahmad y. Muhammad Ilyas and another, reported in 1986 S.C.M.R. 634, Chand Khan v. Akbar and others, reported in 1986 S.C.M.R. 1878, Liaquat Hussan and others v. Abdul Majid and others, reported in 1986 S.C.M.R. 1906, Abdul Wahad v. The State, reported in 1991 P.Cr.L.J. 1110, Zawar Hussan vs. The State, reported in 1991 P.Cr.L.J. 1149, and Abbas Hussan and another v. The State and another, reported in 1992 S.C.M.R. 320.
12. Thus there is a marked distinction between a premeditated murder and a murder which took place ail of a sudden at the spur of moment with no previous hostility. It is factually correct that while dealing with criminals, they should be treated as criminals and be regarded as public enemies, but an allowance has to make for a criminal who unlike hardened criminals becomes a criminal just by chance.
13. Having regard to the factual and legal position, I am in agreement with the view taken by my learned brother M. Hussan Adil Khatri, J. As a necessary corollary to this finding both Cr. Appeal No. 41 of 1989 and Cr. Revision Application No. 63 of 1989 are dismissed. In view of the latest judgment of the Supreme Court reported as Qadir and another VS. The State (PLD 1991 S.C. 1065), the concession of section 382-B, Cr.P.C, is extended to appellant. The appellant who is in custody be informed accordingly.
After the judgment was announced, Mr. Ali Bux Leghari holding brief for Mr. A.Q. Halepota, advocate for applicant in Cr. Revision No. 63 of 1991, brought to the notice of this Court that appellant Zafar Ali was released on bail by this Court under, section 426, Cr.P.C. Mr. Sardar Muhammad Ishaque, advocate for appellant, however, shows his ignorance. In view of this position the Trial Court is directed to take all possible steps to get the appellant arrested and he should be remanded to custody to serve out the imprisonment awarded to him.