1. ' KHALIL-UR-REHMAN KHAN, J.---Taj Ali, convict who was awarded death sentence by learned Additional Sessions Judge-II, Peshawar vide judgment, dated 25-1-1994, which sentence was confirmed by a Division Bench of Peshawar High Court, Peshawar vide judgment, dated 12-5-1996, was granted leave to appeal to consider the question whether the impugned judgment is in accordance with the principle of law as enunciated by this Court.
2. The appellant was charged under section 302, P.P.C. For the murder of one Haroon Khan son of Aziz Khan vide F.I.R. No,279 dated 6-4-1988. The case of the prosecution is that Mian Tariq Azam Azad brought Haroon Khan, Manager of Youth Investment Promotion Society in an injured condition to the casualty ward of Khyber Hospital where he latter succumbed to his injuries. Mian Tariq Azam Azad lodged a report at bout 9-45 a.m. On 6-4-1988 which is to the effect that Haroon Manager and Ghulam Dastgir were present in their office and were busy in their work when in the meantime Taj Ali watchman armed with firearm came there and started firing at Haroon as a result whereof he sustained injuries and after that Taj Ali convict/appellant decamped from the spot. Ghulam Dastgir Typist, Farmanullah son of Ibrahim and Saida Khan son of Habibullah residents of Shabqadar besides him were also present at the spot at that time and had seen the occurrence.
2. He stated that motive for the occurrence was that a few days prior to the occurrence, a guest of Taj Ali had come to the office who was expelled from the office by Gazanfar Ali another watchman, which resulted into scuffle between them. Ghazanfar Ali had made a complaint to Manager Haroon in this respect and an inquiry was conducted by Haroon Manager wherein Taj Ali was found guilty and on the report of the Manager Haroon, Taj Ali was dismissed from service and hence he felt annoyed attempted at the life of Haroon by firing at him with the firearm.
3. Usual investigation followed and the challan was submitted for trial to the Court of Additional Sessions Judge-II, Peshawar. The prosecution at the trial produced 13 witnesses which include the testimony of Tariq Azam P.W.9, Khawaja Ghulam Mustafa P.W.10, Saida Khan P.W.11, Muhammad Iqbal P.W.12 wherein they deposed about the incident of causing injuries to Haroon deceased by shots fired by Taj Ali appellant. This oral testimony was sought to be supported by medical evidence of Dr. Muhammad Ilyas P.W.6 and Dr. Anees P.W.9. Shah Ali Kiyani, Sub-Inspector, the Investigating Officer appeared as P.W.13. Motive was proved through the testimony of Khawaja Ghulam Mustafa P.W.10 who in his statement also produced the inquiry report submitted by Haroon Khan recommending dismissal of Taj Ali appellant from service as also copy of the order of dismissal of Taj Ali from service. The prosecution, thus, produced the eye witness account deposed by Tariq Azam P.W.9, the evidence of Khawaja Ghulam Mustafa P.W.10 and Muhammad Iqbal P.W.12 who were attracted to the spot on hearing the firing and have either seen the appellant decamping from the spot or were told by Haroon that he has been fired at and injured by the appellant and also the motive of the firing. This evidence also stands supported by the medical evidence of Dr. Muhammad Ilyas P.W.6 and Dr. Anees P.W.B. This evidence was accepted firstly by the learned trial Court as establishing the guilt of the appellant who was convicted by the learned Additional Sessions Judge vide judgment, dated 25-1-1994 and was sentenced to death and a fine of Rs,50,000 or in default of payment of fine to undergo two years R.I. Half of the fine on realization was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. On appeal learned Judges of the High Court maintained the conviction and the sentence and resultantly confirmed the death sentence of the appellant and dismissed the appeal.
4. Learned counsel for the appellant in support of the appeal argued that the learned Courts below have erred in relying on the testimony of so-called eyewitness Tariq Azam P.W.9. According to the learned counsel the oral account given by Tariq Azam and Khawaja Ghulam Mustafa stands contradicted by the site plan on record. He argued that the appellant had statedly fired when Haroon Manager was giving dictation to the Typist Ghulam Dastgir in the Steno's room while the site plan shows that the occurrence had taken place in the Veranda as is apparent from Points Nos.1, 2 and 3 indicated in the site plan Exh.P.B.
5. These arguments would have carried weight if the prosecution had asked the three important witnesses namely, Tariq Azam P.W.9, Khawaja Ghulam Mustafa P.W.10 and Muhammad Iqbal P.W.12 about the exact place where Haroon deceased was fired at by the accused. Though Tariq Azam P.W. In his statement deposed that he alongwith other officials of the office accompanied the Investigating Officer, Shah Ali Kiyani, to the spot and the Investigating Officer also stated that the site plan was prepared at the pointation of Tariq Azam P.W.9, but neither Tariq Azam P.W.9 nor Shah Ali Kiyani, the Investigating Officer P.W.13, was confronted with the site plan to pin point the place where the occurrence took place. It is also well established that site plan itself is not a substantive piece of evidence which could be used to contradict or discredit unchallenged evidence of the witnesses [See: Taj Muhammad v. Muhammad Yusuf and 2 others (PLD 1976 SC 234)].
6. It is also to be noted that from the spot blood-stained curtain as well as blood present on the carpet were taken into possession and secured vide Memo. Exh.P.C. The vehicle challan consisting of five sheets as was blood-stained, was also sealed into a parcel and secured as Exh.P.6. These recoveries obviously show the place/spot where Haroon, the deceased fell after receiving fire shorts, but the site plan does not make mention of these recoveries. The site plan though indicates Steno's room, but also shows the place from where Haroon was fired at as well as the place where he received injuries and from where the eye-witnesses saw the incident. Tariq Azam was not asked in cross-examination any question with reference to the site plan. In view of the fact that main features of the prosecution case emerging from these depositions have remained unchallenged, the entries of the site plan cannot be used to discredit the witnesses specially when as indicated above neither these witnesses nor the Investigating Officer who had prepared the site plan was asked to particularize the place where Haroon fell after receiving the fire-shots.
7. The testimony of Tariq Azam P.W.9 stands supported by the statements of Khawaja Ghulam Mustafa P.W.10 and Muhammad Iqbal P.W.12. Their oral testimony stands further supported by the evidence of abscondence of Taj Ali appellant for a period of three years, the medical evidence and the evidence of motive. Moreover, version of Tariq Azam P.W.9 and Khawaja Ghulam Mustafa P.W.10 is very natural and confidence inspiring. Their presence at the spot cannot be doubted as they work in the office where the occurrence took place. They have no animus against the appellant. In fact none has even been urged. Farmanullah P.W. Was given up and Saida Khan P.W. Did not support the prosecution version. Both of them obviously being friends of Tariq Azam P.W.9 and casual visitors to his office thought it fit not to involve themselves in the criminal case against the appellant.
8. Thus, on the basis of the evidence on record, learned Courts below rightly held the appellant guilty of the offence under section 302, P.P.C. The question of sentence of death awarded to him by the learned trial Court and confirmed by the learned Judges of the High Court has also received our serious consideration and we find that as there exists no mitigating circumstances, the death penalty is the only legal punishment which could be and was so rightly imposed on the appellant.
3. The motive alleged by the prosecution was established by producing cogent evidence and no justification could be pleaded for taking life of Haroon deceased, the manager who had recommended dismissal from service of the appellant in performance of his official duty.
9. For the reasons given above the appeal fails and is dismissed.
4. ' WAJIHUDDIN AHMED, J.---I have appended a separate note, converting the death penalty into life imprisonment.
5. ' WAJIHUDDIN AHMED, J.---I agree with the judgment of my learned brother, Khalil-ur-Rehman, Khan, J., that conviction of the appellant under section 302, P.P.C. Be maintained but, respectfully disagree that the present case is one where capital punishment be imposed.
6. ' A more detailed treatment of facts appears to be necessary in order to arrive at the conclusion I have reached: First informant, Tariq Azam (P.W.9), had reported at 10-15 a.m. On 6-4-1988 that, the same day, at 9.45 a.m. When manager Haroon of the Youth Investment Promotion Society, Peshawar, and Ghulam Dastagir were working in the office, Taj Ali, Chowkidar, appeared duly armed and fired at Haroon, one shot after the other, in consequence of which the latter was injured.
7. Taj Ali, accused, made his escape. At the spot Ghulam Dastagir, typist, complainant Tariq Azam, Farmanullah and Saida Khan were present who personally witnessed the incident. By way of motive, it was maintained in the F.I.R. That, few days before the incident, a guest had visited Taj Ali, chowkidar, who was turned out of the 8ffice by Ghazanfar Ali, chowkidar. This resulted in the exchange of blows between the two chowkidars. Ghazanfar Ali complained to Manager Haroon, who conveyed the grievance to the Provincial Chief and got accused Taj Ali terminated. Incensed with this, Taj Ali accused found opportunity to injure manager Haroon, statedly, with a firearm.
8. ' Of the claimed eye-witnesses, Ghulam Dastagir died, apparently of natural causes, before he could be produced in evidence. Farmanullah, allegedly having been won over, was given up. Saida Khan. (P.W.11), pre-empted all association with the incident saying, "I know nothing about the occurrence". Surprisingly, he was not even sought to be declared hostile. In cross-examination to the accused, Saida Khan, stated that had informed the police, when the latter desired to record his statement, that he had not seen the incident at all.
9. ' Tariq Azam (P.W.9), stated that he was a Senior Assistant in the office above referred whereas deceased Maroon was working as manager therein. According to him, it was at about 9.45 a.m. On the fateful day that he alongwith Ghulam Dastagir, Farmanullah, Saida Khan and Haroon was present in such office. Saida Khan and Farmanullah were given out to be the witness's class fellows in the Gomal University. At that time, Taj Ali, accused, entered the office and fired three shots at Haroon, which hit and injured the latter. The accused then:decamped from the spot. The witness, with the help of Khawaja Ghulam Mustafa, provincial chief of the organization, Ghulam Dastagir and Muhammad Rafique driver, shifted the deceased in the injured state to Khyber Hospital, Peshawar, and lodged the report in the casualty ward. The witness went on to report that Taj Ali then a chowkidar in the office, had been terminated from service by Haroon on the basis of an inquiry against him, which caused annoyance to him, resulting in the commission of the offence.
10. The accused had fired at the deceased with a revolver. The police, in his presence, prepared the site plan. He was also a marginal witness to memo. Exh.P.C., through which the Investigating Officer took a blood stained curtain into possession. Blood on the carpet was also obtained through cotton swa bs and sealed in a separate parcel. Likewise, five vehicle challan sheets, also blood stained, were sealed in a parcel. The same was Exh.P.6', whereas the curtain was Exh.P.7. Injured Haroon succumbed to his injuries in the hospital. In cross-examination, this witness disclosed that there were six rooms with one kitchen in the office. Haroon was present in the room in which the witness and Ghulam Dastagir were sitting at the time of firing by the accused. The witness was standing and seeing off his guests, Saida Khan and Farman, who had come to his office in connection with a loan. It will be useful to reproduce the rest of the cross-examination in the witness's own words which are to the following effect:-- "I heard first fire and saw towards accused and the deceased. Accused fired second an third shots in front of my eyes at deceased Haroon with revolver. At the time of first fire by accused at deceased I was ambracing Farman because he was leaving my office. At the time of firing I was not in the line of firing as I was standing at a side. The accused had entered our office on the door of Kitchen and after firing he through the said door decamped. There are two doors in the Kitchen i.e, one is towards the veranda while the other is towards the back side but I do not remember that from which door of the kitchen the accused decamped. The accused had fired three shots but I do not exactly know and remember as to whether deceased was hit with all these or deceased was hit with some of them. I did not myself inspect the spot to see whether a bullet had struck a wall or not.
11. It is correct that there is a Steno room adjacent to the office room of the Chief Executive of the office namely Khawaja Ghulam Mustafa. The witness volunteered that during the days of occurrence only one Dastagir was Stenotypist in the entire office who used to sit in my office. It is correct that at the time of occurrence Haroon Khan was sitting in our office and was giving some dictation to Ghulam Dastagir, Stenotypist. It is incorrect to suggest that I have not seen the occurrence and I have charged the accused falsely being subordinate to Haroon Manager and Chief of the office."
12. ' Khawaja Ghulam Mustafa, (P.W.10), was working as provincial chief of the Youth Investment Promotion Society, Peshawar, at the time. Accused Taj Ali, according to him, was terminated on the report of the deceased. On the day of the occurrence the witness was sitting in his office while the deceased was in the office/room of the typist where he was giving dictation. Ghulam Dastagir and Tariq Azam were also sitting in the said room. The witness heard the report of 2/3 shots in his office and rushed to the room where Haroon deceased was sitting. The deceased, then injured, upon his query, replied, "I have been fired at by Taj Ali, chowkidar". The witness alongwith Ghulam Dastagir and Tariq Azam accompanied the injured to the hospital where the latter succumbed to his injuries before any assistance could be provided to him. The witness recognized the personal file of Taj Ali, accused and the inquiry report against him authored by the deceased. Such was, dated 27-3-1988 and the Head Office, per letter, dated 3-4-1988 dismissed the accused. In cross-examination, the witness reported that there always was a chowkidar on the main gate of the office but volunteered that on the day of occurrence the other watchman posted in place of Taj Ali was absent due to quarrel of Taj Ali with him and because such watchman had fear from accused Taj Ali.
13. ' Muhammad Iqbal, (P.W.12), averred that he was working as operations officer in the Youth Investment Promotion Society and was present in the office on the day of occurrence. The witness heard reports of firearms from the side of the room of typist, Ghulam Dastagir. He rushed outside the office in the veranda and saw accused Taj Ali, duly armed with Tamancha, running from outside the room of the typist towards the main gate. He then rushed to the room of the typist where he saw Haroon, then alive, in an injured condition, Ghulam Mustafa also followed him there.
14. The all took the injured to the hospital. Motive for the occurrence, according to the witness, was termination of accused Taj Ali on the report of Haroon deceased. In cross-examination, as to the persons present at the spot, he mentioned the provincial chief himself and two others from the staff, whose names he did not remember. The witness could not distinguished between a pistol and a revolver. No guests or strangers were seen by the witness in the room where the injured was lying.
15. ' Dr. Muhammad Ilyas (P.W.6), had examined the deceased when he was brought to the casualty ward of the Khyber Hospital, Peshawar on 6-4-1988 at 10.15 a.m. The injured was not talking nor he was oriented in time and space. He was semi-conscious. The witness noted two parallel firearm entry wounds. He did not mention any exist wound.
16. ' Dr. Anees (P.W.8), conducted the post-mortem and identified the following entry and exist wounds:-- "(I) Firearm entry wound 1/4" x 1/4" on the left front of the chest 4" above the left nipple and 6-1/2" from the midline.
(2) Firearm entry wound 1/4" x 1/4" on the left front of the chest 4-1/2" from the midline and 3" below the left nipple.
(3) Firearm exist wound 1/2" x 1/2" on the left back 6" below the tip of the shoulder and 7" from the midline. One bullet recovered corresponding to wound No,1 from the right mid axillary line 4 above the ill iac rets. "
17. ' In his opinion the cause of death was severe shock and haemorrhage caused by injuries to vital parts i.e, left lung, stomach, liver, and intestines. He recovered one bullet; sealed, signed and handed over the same to the police. The postmortem report was produced by him as Exh.P.M.
18. ' Khan Shah, (P.W.1), Asmatullah, (P.W.2), Iqbal Khan Khattak, S.I., (P.W.3), Ihsanullah Khan, S.I., (P.W.4) and Mahabat Khan (P.W.5), were more or less formal police witnesses. Shah Ali Kiyani, S.I., Police Lines, Peshawar, (P. W.13), was the Investigating Officer. He had prepared the site plan, Exh.P.B., at the instance of Tariq Azam, complainant, and acknowledged the sketch and the foot notes therein as correct. He also produced the personal file of accused Taj Ali, containing 35 pages, as Exh.P.8.
19. The same had been handed over to him by Ghulam Dastagir, stenographer, in the presence of marginal witnesses. He had taken into possession five delivery challans (blood stained) as Exh.P.6 and parda cloth, also blood stained, as Exh.P.7. Blood stained from the carpet was collected by him through the means of cotton swa bs and sealed vide recovery memo. Exh.P.C. Because the accused was evading arrest the witness has obtained due proclamation notice in triplicate under section 87, Cr.P.C. Later, the witness had been posted as S.H.O., Police Lines, and had submitted the challan.
20. In cross-examination, the Investigating Officer stated that he had shown the room in the site plan where the occurrence had taken place. He acknowledged that he had not seen any sign of a bullet in the wall.
21. ' The survey of evidence in the case would be incomplete without making a particular reference to the site plan (Exh.P.B.) prepared by the Investigating Officer. Significantly, point No,1 in the sketch is the place where deceased Haroon was shown as standing. It is situated in a passage. This point, at the northern tip of the building, is far removed from the room of the steno at the south-eastern extremity, where the deceased, according to all relevant witnesses, was alleged to have been shot at. In the immediate vicinity of point No,1 is point No,2 where accused Taj Ali has purportedly been shown standing at the time of opening fire. Nearby, at point No,3, Ghulam Dastagir, stenographer, is said to have been standing and witnessing the incident. Some distance away, in the same passage, at points Nos.4, 5 and 6, near the door of the servants room, abutting on the western side and an adjoining door of the bathroom, on the southern side, the bathroom being as broad as the passage and its length running upto the southern extremity of the building, witness Tariq Azam and his friends Farmanuulah and Saida Khan are demonstrated to have been standing. From points Nos.4, 5 and 6, points Nos.1, 2 and 3, directly opposite, were clearly visible. However, and, as seen, points Nos. 1, 2 and 3, being at the northern tip of the building, one would have to travel to points Nos. 4, 5 and 6 and turn into another; but a semi zig zag passage, to reach the steno's room, which was at the south-easrtern edge and which could not be seen from any of the points 1 to 6 because of the intervening space and walls. Significantly, from points Nos. 7, 8 and 9, figuring in the other part of the zig zag passage, where witnesses Kishwar, S.M. Naqi and Muhammad Rafiq are shown as standing, out of whom none was mentioned in the F.I.R. Nor examined in Court, the exterior of the steno's room was visible. Such points, accordingly, have not made any impact on the case. This site plan, in short, does not correspond with the location of the incident nor can otherwise be used in support of the prosecution evidence.
22. ' The accused, in his statement under section 342, Cr.P.C., acknowledged that an inquiry was conducted against him and that he was removed from service but said that such inquiry was conducted by the provincial chief. He denied that he nurtured any grudge against the deceased.
23. He also denied his involvement in the offence and said that after his removal from service he had gone to Karachi for earning his livelihood. He further denied that he had remained absconding for three years before he was arrested from Karachi and said that he had never been informed by any one that he was being sought after by the prosecution. He neither led any defence evidence nor examined himself on oath, saying that the last was not necessary because the prosecution had failed to establish any case against him.
24. ' On the above evidence, the appellant was convicited under section 302, P.P.C. And imposed the maximum punishment by the Additional Sessions Judge, Peshawar, on 25-1-1994. The High Court affirmed the conviction and maintained the death sentence on 12-5-1996. Leave was granted in this Court on 22-5-1997 to consider the following in the perspective of the principles of law enunciated by this Court:- "(2). In support of the above petition Mr. M. Saeed Baig, learned Advocate Supreme Court for the petitioner, has vehemently contended that out of four eye-witnesses, only two eye-witnesses were examined; out of them, one had not supported the prosecution version and the remaining witness could not have been relied upon without having independent reliable corroborative evidence. His further submission was that P. W.10 (Khawaja Ghulam Mustafa) and P. W.12 (Muhammad Iqbal) were also examined to corroborate the statement of aforementioned eye-witnesses and their testimony could not have been relied upon as they were not named in the F.I.R. And they were examined by the Investigating Officer after 18 days from the date of occurrence."
25. ' There are obvious contradictions and lacunas in the prosecution evidence. In the first place, Farmanullah was admittedly given up on account of his being won over and likewise Saida Khan, when examined, wholly disassociated himself from the incident. Both were friends of complainant Tariq Azam and the position relevant to them cannot be said to have left the prosecution version totally unaffected. Besides, as pointed out by Mr. M. Saeed Baig, the appellants' learned counsel, first informant, Tariq Azam, equivocally got recorded in the F.I.R. That the accused was equipped with a fire-arm without identifying its nature or kind. When examined in Court, this witness promptly identified a revolver as the specific weapon of offence. Muhammad Iqbal, (P.W. 12), who was not even mentioned in the F.I.R. And who allegedly ran out of his office upon hearing the fire shots saw the accused running with a tamancha and acknowledged that he could not distinguish between a pistol and a revolver, Both he and. Khawaja Ghulam Mustafa, (P.W.10) were belatedly examined under section 161, Cr.P.C. On the other hand, Dr. Anees, (P.W.8), recovered a bullet from the body of the deceased and handed over the same to the police after duly sealing and signing its receptacle. If, therefore, bullets came to be used for committing the offence only two shots have been accounted for because at least two doctors have identified merely two entry wounds on the body of the deceased and the third bullet (in the testimony of Tariq Azam), obviously, is missing.
26. Add to this the fact that, as reflected in the site plan, neither the first informant nor his two friends could see the inside of the stenographer's room where the deceased was sitting, dictating to Ghulam Dastagir, Stenographer. Evidently confronted with this situation, the site plan has seemingly altered the location, of the deceased, the accused and the stenographer to the northern extremity of the building in the veranda from where they could be shown as visible to the first informant and his two guests. It is true that, as pointed out in Taj Muhammad v. Muhammad Yusuf, PLD 1976 Supreme Court 234, a site plan cannot be used as a substantive piece of evidence to destroy the testimony of eye-witnesses, which has otherwise gone unchallenged, but, when challenge to such witnesses is clearly thrown, the prosecution's own version in an exhibited site plan can surely be used to test the veracity of the evidence tendered by the State. The other weaknesses in the prosecution case are reflected in the fact that the first informant, who alone has been examined, as an eye-witness, has neither reported the entry of the accused at the scene of the offence nor has said anything about what words, if any, were exchanged between the accused and the deceased before the accused opened fire at his end. It was natural in a state of such hostility and such motive, as alleged, that some words would have emanated from the accused.
27. Add to this another circumstance in the case namely, that the accused should have been more seriously motivated against Ghazanfar Ali, chowkidar, quarrel with whom had occasioned the fight between the two chowkidars, which resulted in the inquiry against and punishment of the appellant by way of dismissal from service. Indeed, witness Khawaja Ghulam Mustafa has acknowledged that Gazanfar Ali chowkidar was absent from duty on the fateful day because of fear of the accused.
28. ' As against the above, the positive aspects of the prosecution case out-weights weaknesses. Thus, the presence of the first informant at the spot cannot be doubted through it is not unlikely that he only saw the accused entering and leaving the room where the deceased was sitting and also heard the firearm reports. This possibility is also corroborated upon the evidences of two other witnesses namely, Khawaja Ghulam Mustafa, (P.W.10), and Muhammad Iqbal, (P.W.12), both of whom heard the shots, came out of their rooms and one of them saw the accused running past him. Then, Khawaja Ghulam Mustafa (P.W.10), stated that the deceased even personally acknowledged that he had been fired upon by appellant Taj Ali. The motive also, occasioned by the appellant's dismissal from service, stands proved. The truth of the incident is further strengtened by the fact that the appellant absconded to Karachi and could be arrested only after three years of the event. There is, accordingly, moral certainty of the guilt of the accused and his conviction is duly sustainable.
29. ' The only question is whether it is the capital punishment, which should be imposed on the accused or the lesser version of life imprisonment would serve the purpose. In a large number of cases where the actual exchange of words between the assailant and the victim of a murderous assault could not be recapitulated and, thus, the circumstances immediately preceding the infliction of the fatal injury remained obscure, while on evidence that should not have been so, the maximum penalty of death has been avoided. That is the precise situation here.
30. Like would be the outcome where the medical evidence casts a shadow on the prosecution version. As already noticed, one of the bullet shots has I remained unaccounted for, expert opinion only coming up with two entry wounds in an encounter suggesting a point blank range.
31. Besides, doubts attaching to the prosecution story, if vital to the case, result in scuttling the prosecution itself. However, where doubts are of a less serious nature and do not detract from the factum of the offence, which stands otherwise proved, such doubts, can always weigh in the matter of awarding punishment to the accused. This is applicable here. While in cases of unprovoked murder, without any mitigating circumstances, the unescapable penalty is death a discretion still vests with the Court to award a lesser punishment, where extenuating circumstances present themselves. Similarly in murder cases, while onus is upon the accused to show circumstances, which would warrant a punishment other than death, nothing can absolve the Court of its responsibility to identify plausible existence of an unpleaded defence, if reasonably emerging, from the facts and circumstances of the case. Life in all its forms is valuable and cannot be wantonly destroyed. Human life ranks highest in that chain and is guaranteed nationally as well as internationally, In cases coming before Courts attracting capital or its alternative punishment a very delicate balance is to be struck. On the one hand, the victim is to be avenged and the society is to be protected by enforcing an effective deterrent and on the other, the accused is to be visited only with his deserts and no more It is for this reason that in matters, throwing up some doubts, which fall short of negating the prosecution case completely, the maximum penalty is to be avoided. See Muhammad Tahir Khan v. State, 1983 SCM R 1169, and Nawazish Ali v. State. 1985 PCr.LJ 1712.
32. ' Further, the facts that the offence occurred so soon after the accused was dismissed from service, that the victim was none other than the instrument through whom the dismissal was channelled and that the adversary of the accused, the other chowkidar, had made himself scarce in order to escape vengeance, establish the accused to have become desperate and, possibly, even sick of life. Such cases also deserve thorough weighing of the sentence to be imposed.
33. All in all, therefore, I would humbly alter the death penalty to life imprisonment with corresponding benefit of section 382-B, Cr.P.C. Conviction is, accordingly, maintained but the sentence stands modified in terms.
34. ORDER OF THE COURT ' By majority view the appeal is dismissed, the conviction of the appellant under section 302, P.P.C.
35. And the sentence of death awarded to him by the trial Court and confirmed by the High Court is maintained.