' NAZIM HUSSAIN SIDDIQUI, J---This order will dispose of Cr.P.S.L.A. No 265 of 1999 and Cr.P.S.L.A. No, 5 of 2000. Both these petitions arise from same F.I.R. And also from the same judgment. In Cr.P.S.L.A.
No, 265 of 1999 petitioner Mst. Promilla widow of J. Samuel Masih (hereinafter called "the petitioner") has prayed that the sentence awarded to respondent Safeer Alam son of Hayat Masih (hereinafter called "the respondent") by the trial Court be restored and the amount of compensation of Rs,50,000 be enhanced to Rs,5,00,000 while in Cr.P.S.L.A. No, 5 of 2000 petitioner Safeer Alam (the respondent in Cr.P.S.L.A. No, 265 of 1999) has prayed that the impugned judgment be set aside and he be acquitted.
2. In both these petitions leave has been sought against the judgment dated 12-7-1999 of Lahore High Court, Rawalpindi Bench, whereby the judgment dated 25-1-1996 of learned Additional Sessions Judge, Rawalpindi, convicting the respondent under section 302, P.P.C. And sentencting him to death and also to pay a fine of Rs,50,000, which if recovered, was to be paid to legal heirs of the deceased as compensation or in default thereof to undergo R.I. For 6 months, was modified and instead death the respondent was awarded 14 years' R.I. With benefit of section 382-B, Cr.P.C.
By the same judgment co-accused namely, Shahnazar alias Shazi son of Safeer Aram and Ejaz Kaleem were acquitted. Criminal Appeal No,17 of 1996 of the respondent challenging his conviction and sentence was dismissed and so also Murder Reference No,238 of 1996 which was sent by the trial Court for confirmation of death sentence of the respondent.
3. The occurrence took place on 16-10-1992 at 8-30 a.m. In the residential area of the Garden College, Rawalpindi, and the statement of petitioner Mst. Promilla was recorded under section 154, Cr.P.C. Which was incorporated in F.I.R. Exh. PA/1.
4. Deceased Shamael Dilshad aged about 20 years was the son of the Petitioner. The motive as set up in the F.I.R. Was that P.W. Maqbool Masih (not examined) used to allegedly peep through the window, which faced the courtyard of the house of the respondent and disturbed the privacy of the respondent.
5. It is alleged that the petitioner and her sons Anjum Dilshad and deceased Shamael Dilshad were in occupation of half portion of said house while the respondent resided in its remaining portion, which was on north side. Maqbool Masih, who was a servant of the petitioner, used to reside in servant quarter and the respondent had asked him (Maqbool Masih) to vacate the room, which had a window opening in the courtyard of his (respondent's) house; as his privacy was disturbed. It is also alleged that on the day of occurrence said Maqbool Masih and his wife Mst. Kausar had complained the petitioner and her deceased son that the respondent and acquitted accused Shahnazar had abused them and also demanded to immediately vacate the quarter in their possession. Thereafter, the petitioner, her deceased son, said Maqbool Masih and Mst. Kausar in order to protest against unjustified demand of the respondent, went to his house, made a call at the gate which was attended by acquitted accused Shanazar. While discussing the matter an altercation took place between the deceased and acquitted accused Shanazar and on the call of the latter the respondent appeared there, duly armed with t 7-MM rifle. Another acquitted co- accused namely, Ejaz Kaleem, who is an uncle of acquitted co-accused Shanazar also came there empty-handed and raised Lalkara, saying that the deceased shall be taught a lesson for protecting his servant.
6. Thereupon, the respondent fired from his rifle upon the deceased, who sustained an injury on the left side of the body and fell down. According to the prosecution, thereafter, the respondent and the acquitted co-accused dragged the deceased inside the gate of their house. The deceased succumbed to injuries, while he was being taken to the hospital.
7. The petitioner being dissatisfied with the investigation of local police filed a private compliant, under section 302/34, P.P.C., against the respondent and above named acquitted co-accused. The police on completion of investigation also submitted charge-sheet showing co-accused as innocent. The complaint and the police report were consolidated and learned trial Court preceded with the private complaint.
8. At trial, the following were examined as P.Ws., C.Ws. And D.Ws:-- Mst. Promilla, complainant/the petitioner, and Saleem Mical, a nighbour, P.Ws., Police Constables Khadim Hussain, Muhammad Boota, Muhammad Imtiaz, and Aman Ullah, A.S.-I. Muhammad Akbar, Imran Sharaf, Akbar Sharaf, H.C. Muhammad Rafique, A.S.-I. Mushtaq Ahmed, Dr. Pervaiz Yousaf, M.O., Qamar-ud-Din, Draftsman, S.-I. Inayat Ullah, D.S.P. Muhammad Ishaq Sindhu, Dr. Iniq-ur-Rehman C.M.O., Dr. Fayyaz Ahmed Ranjha, D.H.O. And Shaukat Hayat, Deputy Director-General, Intellingence Bureau, C.Ws. And Dr. Safdar Mehmood, D.W.
9. Dr. Pervaiz Yousaf conducted the post-mortem and found following injuries on the person of the deceased:-- "Lacerated wound of entry oval shape 3 x 1.5 c.m. With slight blackening around margins of wound at entro lateral aspect of left. Lower chest. 12 c.m. Infro lateral the left nipple 17 c.m. Below interior lateral axillary fold just in line."
' The following injuries were found on the person of respondent Safeer Alam:-- "No, 1 ' Inner aspect of lower lip was slightly lacerated in the middle measuring 1 x 1 c.m. With swelling around. No .2 ' Upper lip was bruised and swollen in the centre. No,3.
' Left shoulder back was bruised measuring 2 x 6 c.m. With tenderness and slight restriction in the movements. No .4 ' A diffuss wolling measuring 3 x 3 c.m. Over left oxipital region of head. No,5 ' There was complaint of pain in left hip joint. No,6 ' Middle of the thumb of right hand was slightly bruised and swollen over posterior aspect. No,7 ' He was complaining pain over whole chest back. On examination there were multiple small bruises on the chest back."
' The following injuries were found on the person of Shahnazar:-- "No,1 ' Contusion mark 8 x 6 c.m. On inner and lower portion of right upper arm. No,2 ' Contusion mark 9 x 6 c.m. The front of right elbow with complaint of pain on movement in elbow joint (advised X-ray).
No, 3 ' Complaint of pain in the right side of neck (advised X-ray).
No,4 ' A contusion mark 17 x 1 c.m. On the back of right side of chest in the middle. No,5 ' Contusion mark 13 x 2 cm on the back of right side of chest 4 c.m. Lateral to injury No,4.
No,6 ' Contusion mark 10 x 1 c.m. On the back of right side of chest 5 c.m. Lateral to injury No,5."
10. The respondent in his statement recorded under section 342, Cr.P.0 denied the prosecution allegations and claimed to be innocent. His case is that said Maqbool Masih used to peep into his house where his family mamebers including his wife and young daughters resided. According to him, he had reprimanded said Maqbool Masih for his indecent behaviour four. He claimed that on the day of occurrence, the petitioner, the deceased and Maqbool Masih duly armed with hockey and sticks, came at the main gate of his house, demolished a portion of it, committed criminal trespass, and caused injuries to his son Shanazar. On hearing hue and cry he ran towards the courtyard of his house carrying his licensed rifle, which, according to him, he had taken only to terrify them. He stated that due to an abrupt blow of stick by said Maqbool Masih on his rifle it went off and the bullet hit the deceased.
11. On assessm ent of the evidence brought on record learned trial Judge, held 'that the motive of crime was not disputed, the F.I.R. Was lodged promptly, the deceased was fired at by the respondent. Having taken into consideration the above circumstances and all other pieces of evidence, the trial Court reached the conclusion that the case of prosecution against the respondent was proved beyond any shadow of doubt and that the respondent was guilty of committing murder. Co-accused were acquitted as no case was made out against them.
12. Learned High Court modified the findings of the trial Court to the extent stated above and observed that "the occurrence admittedly was the result of altercation and sudden quarrel between the parties and the deceased a young boy naturally would be emotional and active in the quarrel and the respondent in retaliation without tolerating the situation took extreme step of firing at the deceased". Learned High Court also held that the offence was committed without any premeditation and intention, as such, the offence of "Qatl-i-Amd" was not established, but it may attract the provisions of section 302 (c), P.P.C. For the purpose of sentence. On above findings, the sentence was altered as mentioned earlier.
13. It is contended on behalf of the petitioner that learned High Court failed to appreciate the evidence in its true perspective and reached wrong conclusion. It is urged that non-disclosure of injuries on the persons of the respondent and his son, and not furnishing any valid explanation in that regard was by itself sufficient to indicate, that the occurrence did not take place in the way it was alleged. Learned counsel argued that, though it was a brutal murder, yet, the High Court modified the sentence by taking totally unjustified lenient view.
14. Material facts in this case are not in dispute. It is an admitted fact that on said date and time the occurrence took place. The respondent, in his statement under section 342, Cr.P.C., even admitted the main allegation of prosecution relating death of the deceased by a shot from his rifle, but tried to take refuge under his laboured defence plea that a blow of stick by said Maqbool on his rifle was the reason that it went off, causing death of the deceased. There is no substance in above plea.
Had he taken the rifle to scare the complainant party then it would have been unloaded. The very fact that it was loaded supports the complainant's version that the respondent had used it and had fired upon the deceased. Learned High Court for cogent reasons disbelieved above plea of the respondent and rightly so.
15. It appears from the evidence available on record that complainant party had gone to the house of the respondent to lodge their protest. The evidence reveals that there was altercation between the parties and this infuriated the respondent, who fired upon the deceased. There was no enmity between the parties. The respondent had no prior intention to cause injury to the complainant party as it was the latter who had gone to the house of the former. What proceeded immediately before the actual occurrence remained shrouded in mystery. The dialogues then exchanged by the parties are not disclosed. We agree with the findings of the High Court that the offence of "Qatl- i-Amd" was not made tut and also hold the respondent was rightly convicted and sentenced under clause (c) of section 302, P.P.C.
16. Assessm ent of appropriate sentence primarily is the function of the trial Court and the Court acting in appeal or revision and this Court as a rule will be slow in interfering such sentence unless it is shown that the sentence so awarded was illegal or contrary to the principles laid down by this Court. For above reference can be made to the decisions of this Court reported as:--
(i) Shaheb Ali v. The State (PLD 1970 SC 447).
(ii) Muhammad Rafiq v. The State (1971 SCM R 378).
(iii) Ghulam Muhammad v. The State (1972 SCMR 393).
(iv) Ameer Umar v. The State (1976 SCM R 338).
(v) Muhammad Jamal v. The state (1997 SCM R 1595).
(vi) Muhammad Shafique and others v. Akhtar Shah and others (1997 SCM R 1964).
17. Learned counsel for the respondent (petitioner in Cr.P.S.L.A. No,5 of 2000) submits that after the sentence was altered from death to 14 years' R.I., the respondent served out said sentence and was released by the jail authorities. Clause (a) of section 302, P.P.C. Provides death penalty as Qisas, (b) death or imprisonment for life, and (c) imprisonment which may extend to 25 years. It is noted that, death and imprisonment for life/ imprisonment for 25 years cannot be awarded for the same offence simultaneoulsy. Whatever the circumstances, the fact remains that the respondent was awarded 14 years' R.I. By the High Court and he served out the same. Now death penalty for the very offence cannot be awarded. Even otherwise, 14 years' R.I., under the circumstances, was appropriate sentence. No exception can be taken to the judgment of the High Court.
18. Since we have maintained the above sentence, the question of its enhancement or of acquittal of respondent Safeer Alam does not arise, as in both the petitions exactly the same facts are involved. Accordingly, leave to appeal is refused and these petitions are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.