SHAH JEHAN KHAN, J.--Nusrat Shah, appellant herein, charged in a case under section 302, P.P.C.
For the murder of his own brother Iftikhar Ahmad Shah, vide F.I.R. No,444. Dated 5-7-1995, Police Station Badaber was tried by the Judge Special Court/Additional Sessions Judge, Peshawar, who' vide his judgment dated 5-11-1997 found him guilty of the offence and convicted and sentenced him to imprisonment for life and to pay a sum of Rs, 50,000 to the children and widow of the deceased or in default to suffer six months' S.I. Further. Feeling aggrieved of his conviction and sentence the appellant has come up to this Court with the instant criminal appeal.
2. The prosecution case in brief is that on 5-7-1995 at 7-00 a.m. One Muhammad Shah took the dead body of his son Iftikhar Ahmad Shah to Police Station Badaber and lodged a report to the effect that the deceased was residing with him. Some time prior to the occurrence he went out from his house for answering the call of nature. In the meanwhile he heard the report of fire shots.
He came back to his house and saw that his son Iftikhar Ahmad Shah was lying murdered. On inquiry he was told by the womenfolk that two unknown persons had entered the house and fired at Iftikhar Ahmad Shah with which he was hit and died on the spot. He further stated that he had no previous enmity with any one. On coming to know of the actual culprit he will charge him.
3. The above report was recorded by Syed Sajad Hussian Ali Shah, ASHO Police Station Bhadaber vide Exh.PA/l. He prepared the injury sheet Exh.PW.8/1 and inquest- report Exh.PW.8/2, and despatched the dead body to the mortuary for post-mortem examination. Then he proceeded to the spot alongwith complainant, where he prepared the site plan Exh.PB at the instance of Mst.
Parveen (P.W.6) wife of the deceased. He recorded statement of Mst. Parveen who stated that her husband Iftikhar Ahmad Shah was murdered by his own brother Nusrat Shah, the appellant. He took into possession blood-stained earth from the spot vide Memo. Exh.PC in presence of marginal witnesses and vide Memo. Exh.PC/1 he recovered two empties of 7.62 bore (P.2) from the spot. He recorded statements of P. Ws. And took into possession blood-stained clothes of the deceased consisting of shirt (P.3), Shalwar green colour (PA) produced by Shahzada Constable. He also produced wife of the deceased Mst. Parveen before the Magistrate for recording statement under section 164, Cr.P.C. Through an application Exh.P.W.8/3. The Investigating Officer arrested the .Accused and vide application Exh.PW.8/4 sent the blood-stained articles to the F.S.L. For chemical analysis. On completion. Of investigation he submitted the file to S.H.O. Who submitted challan in the Court against the accused.
4. Dr. Sahib Dad Khan (P.W.7) conducted the autopsy on the dead body of deceased Iftikhar Ahmad Shah on 5-7-1995 at about 8-30 a.m. Who found the following injuries on his external examination:-
(1) Fire-arm gutter wound on left side of face 8 x 2 c.m. In size 2 c.m from.Angle of mouth 2.5 c.m.
From angle of mandible.
(2) FA exit wound on left shoulder anteriorly 1.5 x 1 c.m. In size 2.5 c.m. Below the top of shoulder and 8 c.m. From the root of the neck.
(3) FA entry wound on left arm 0.5 x 0.7 c.m. In size situated anteriorily 3.5 c.m. Above elbow joint and 14.5 c.m. From axilla. {4) FA exit wound 2 x 1 c.m. In size on outer aspect of the left arm 10 c.m. From the top of shoulder and .19 c.m. From left elbow. Humerus bone is fractured.
(5) FA exit wound in mid line and abdomen 1.5 x 3 c.m. In size 1.5 c.m. Below the xiphisternum and 11 c.m. Above the umblicus.
(6) FA entry wound on right- side of abdomen 0.5 c.m. In, diameter 1.5 c.m. Below the costal margin and 9 c.m. From mid line.
(7) FA entry wound on right side of abdomen 0.5 x 0.5 c.m. In size .6 c.m. From iliac crest and 8 c.m.
From mid line.
(8)= FA entry wound on right thigh 0.5 c.m. In diameter .17 c.m. Below iliac crest and 15 c.m. From groin.
(9) FA entry wound right thigh 0.5 c.m. In diameter 2 c.m. Above the knee joint and 6 c.In. Below injury No,8.
(10) FA lacerated wound 18 x 6 c.m. In size on left forearm 11 c.m. Below the elbow joint involving wrist and back of hand with fracture of radius and ulna.
(11) FA entry wound situated on left back chest 0.5 x 0.7. c.m. In size .4 c.m. Below the angle of scapula (left) 10 c.m. From mid line.
(12) FA entry wound on left back chest 0.5 x 0.8 c.m. In size 2.5 c.m. From mid line 7.5 c.m. From injury No,11.
(13) FA exit wound on left buttock 2.5 c.m. x 1 c.m. In size 6.5 c.m. Below left iliac crest 10 c.m. From mid line.
(14) FA exit wound on left lower back 2 x 1 c.m. Size 1 c.m. From mid line, 7 c.m. Above anal cleft.
(15) VA exit wound on right lower back 1.5 c.m. x 2 c.m. Size 7 c.m. From mid line 3.5 c.m. Below iliac crest.
(16) FA exit wound 0.5 c.m. In diameter 8 c.m. Below the buttock 2 c.m. Above the knee-joint on outer aspect of thigh: Internal Examination: Thorax. Walls, ribs and cartilages, pleurae, left lung, pericardium and heart and blood vessels were found injured. Abdomen: Walls, peritoneum, diaphragm, stomach and its contents (injured some food semi-digested present)", small and large intestines were found injured. OPINION: In my opinion the deceased died due to injuries to the heart, left lung, stomach and intestines due to fire-arm. Probable time between injury and death immediate and time between death and PM 2-4 hours.
5. The prosecution examined as many as eight witnesses in support of its case. The appellant was examined under section 342, Cr.P.C. Who denied the charges and stated that he was innocent and falsely charged. He did not opt to produce defence. He also did not wish to be examined on oath.
6. We have heard learned counsel for the parties at considerable length and have also gone through the record of the case.
7. The learned counsel for the appellant contended that father and mother of the deceased have compounded the right of Qisas and have pardoned the appellant but the widow of deceased having three minor. Daughters is reluctant to compound the matter and her whereabouts are also not known to the parents of deceased. The parents of deceased and appellant present in Court also affirm that they have granted pardon to appellant in their capacity as legal heirs of deceased.
In these circumstances the learned counsel submitted that case of the appellant would fall under section 311 of the Pakistan Penal Code which provides for such eventuality. In these circumstances the learned counsel prayed for the reduction in the sentence. In support of his submissions he placed reliance on Muhammad Iqbal v. The State 1999 SCM R 403; Khalid Nawaz v. The State 1999 SCM R 933 and Muhammad Mushtaq v. The State 1999 PCr.LJ 2064.
8. The learned counsel for the State submitted that notwithstanding the fact that parents of deceased who have got the same relations with the appellant have compounded their right of Qisas but the appellant is guilty of Qatl-e-Amad of his real brother. The case of appellant amounts to 'Fasadfil-Ard' as the manner and circumstances in which he committed the offence were brutal in nature and he deserved the maximum sentence provided under the law.
9. We perused the record which reveals that the father of deceased had tried to defend the appellant being his son even at the time of registration of the case. In his first information report lodged in the police station he disclosed that the deceased Iftikhar Ahmad Shah (his son) was residing with him in the same house, a little before the occurrence he had gone to the nearby fields to ease himself. He heard. The report of fire shots from the direction of his house which attracted him to the spot and found his son Iftikhar Ahmed Shah murdered. He was informed by the female inmates ofthe house that two unknown persons entered their house and fired at Iftikhar Ahmad Shah deceased which hit him and he died on the spot. He disclosed that he had no enmity with anybody' and he will charge the culprits subsequently and thus suppressed the actual facts to save the skin of appellant, his son. In his Court statement as P.W.5 he made further concession to the accused by saying that while attracted to the house after hearing the report of fire shots he noticed two persons coming out of his house but as they were backing towards him he could not identify them. In his cross-examination he stated that he has got three sons alive namely Nasir Mehmood, Rifaqat Shah and the appellant and all of them were living in a joint house with him. His son Nasir Ahmad Shah was stated to have been murdered in the village after the instant occurrence but subsequently the accused were granted pardon by effecting a compromise with them. The relations between deceased and the appellant were stated to be cordial. The deceased left behind his widow Mst. Parveen with whom the deceased had strained relations and suppressed the fact that the spouse had three daughters as wc'1. He denied the suggestion that accused being his son he is trying to save his skin.
10. The widow of deceased Mst. Fatwarni alias Parveen was examined as P.W.6 who narrated the entire episode. She stated that it was about 7-00/8-00 a.m. That she was busy in kneading the flour for bread, hen belonging to accused was disturbing her, therefore she hit the hen with her footwear. The appellant's wife narrated her husband the happening on which he flared up, rushed to the 'Kotha' and opened fire at her deceased husband. She refuted the version of her father-in- law that her relations with the deceased were strained and so was the relation between the deceased and her parents.
11. During spot inspection the Investigating Officer recovered bloodstained earth and two spent bullets having marks on the wall of residential room of deceased. The deceased was examined by the doctor and an excessive number of inlet wounds was found on his person.
12. The occurrence has taken place inside the joint house of deceased and appellant and only the inmates of the house are supposed to witness the occurrence. Among the members of joint house the appellant's wife and parents of deceased have not deposed against the appellant due to their close relation with the appellant. Only the wife of deceased who became widow due to the death of her husband has given a clear breast version of the occurrence. Her deposition could not be shattered during cross-examination and it has got material due corroboration. The appellant though tried to establish that the relations between P.W.6 and her deceased husband were strained' but miserably failed to establish the defence set up at the trial.
13. In his statement under section 342, Cr.P.C. The appellant has out rightly denied the commission of offence but neither examined himself only oath nor produced any evidence in defence.
14, The contention of the learned counsel for the appellant that some of the legal heirs have granted pardon to the appellant while the wife of deceased who is also guardian of the three minor daughters of deceased has refused to grant pardon to the appellant and the conviction of the appellant under section 302-B, P.P.C. Was unwarranted and the appellant could be convicted under section 311, P.P.C. Which reads as under:-- "311. Ta'zir after waiver or compounding of right of Oisas in Oatli-Amd.--Notwithstanding anything contained in section 309 or section 310 where all the Wali do not waive or compound the sight of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years as Ta'zir.
Explanation.--For the purpose of this section, the expression Fasadfil-Arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed."
Under the aforementioned provision of law where some of the adult and sane heirs of the deceased compounded the Qisas against Badle Sulah or waived of their right of Qisas with or without compensation but some of the legal heirs did not compound or waive of their right of Qisas the Court has to keep in view the principle of Fasad-fil-Arz which include the conduct of offender being previous convict, his habitualness or being a professional offender and also the brutal manner in which offence is committed, shall punish the offender up to fourteen years as Ta'zir.
15. In the cited judgment of Khalid Nawaz v. The State 1999 SCM R 933 the mother of deceased compounded the matter and waived her right of Qisas against the accused who happened to be heir grandson whereby the august Supreme Court of Pakistan altered the conviction from section 302(b), P.P.C. Into conviction under section 311, P.P.C. With the following direction:-- "It is contended that the appellant could not have been convicted under section 302(a), P.P.C.
Because Mst. Taleh Bibi, mother of Rehmat All deceased, had pardoned him and had also waived her right of Qisas and Diyat. She had made a statement to this effect before the learned trial Court on 28-4-1993, but it escaped the notice of the learned trial Court as well as the learned High Court. Section 309(1), P.P.C. Permits any adult Wali of the deceased to waive the right of Qisas without any compensation, and if so done by any Wali, the offence would be punishable under section 311, P.P.C.
We, accordingly, partly accept the appeal and alter the sentence of death of the appellant to imprisonment for 14 years' R.I. With benefit of section 382-B, Cr.P.C. In addition to this, the appellant shall pay the Diyat amount to the mother of the deceased."
Keeping in view the facts and circumstances of the case whereby the convict-appellant brutally murdered his real brother living with him in the same house only on a petty dispute, and the burst fired by him at his deceased brother as is evident from post-mortem report we are of the view that the appellant is not deserving any leniency and liable to be punished severely.
16. In light of the provision contained in section 311, P.P.C. And the dictum laid down in the quoted judgment of the august Supreme Court we maintain the conviction of appellant but alter it from section 302(b) P.P.C. To section 311, P.P.C. And punish him for fourteen years as Ta'zir with benefit under section 382-B, Cr.P.C. And enhance the compensation of Rs, 50,000 awarded through impugned judgment to the amount equal to 'Diyat' amounting to Rs, 2,69,176 (Rupees two hundred sixty-nine thousand one hundred seventy six only), payable to the widow of deceased and her children, under section 544-A, Cr.P.C.