' IFTIKHAR MUHAMMAD CHAUDHRY, J.---By this common judgment we propose to dispose of Criminal Appeal No, 332 of 2001 and Jail Petition No, 187 of 2001 as in both the matters judgment dated 27-1-1998 passed by Lahore High Court, Lahore has been assailed.
2. The details of conviction awarded to appellant Anees Ahmed and petitioner Muhammad Yousuf are as under:- Appellant Anees Ahmad alias Muhammad Umer Under section 302, P.P.C.: Death Under section 392, P.P.C.: 10 years' R.I. With fine of Rs,20,000. In default to undergo S.I. For one year.
' Petitioner Muhammad Yousuf Under section 392, P.P.C.: 10 years' R.I. With fine of Rs,20,000 in default to undergo. S.I. For one year.
3. It may be noted that Criminal Appeal No,332 of 2001 is by the leave of the Court whereas in Jail Petition No, 187 of 2001 tiled by Muhammad Yousuf no leave to appeal has been granted. Even otherwise this petition is barred by 1370 days.
4. Precisely stating facts of the case are that petitioner Muhammad Yousuf son of Suleman, resident of Chishtian, District Bahawalnagar and Anees alias Muhammad Umer son of Abdul Ghani, resident of Karachi were tried for the offence under section 392 read with section 302/34, P.P.C. By learned Special Judge, Anti-Terrorism Court No,II, Multan established under the Anti-Terrorism Act, 1997, for committing the murder of Azhar Ehsan deceased during the course of committing the offence of robbery on 24-9-1997 on a .Public road in the area of Police Station Kotwali, Multan.
5. The prosecution case as disclosed in the F.I.R. Is that on 24-9-1997 at about 8-00 p.m. Azhar Hussain deceased alongwith Ashfaq Ahmed complainant (P.W.2), Saadullah (P.W.3) and Amar Ibrahim having gone to fruit shop situated at Chungi No,8, IMQ, Multan, on the motorcycles were present outside the fruit shop to purchase when they were intercepted by the appellant and petitioner. Anees alias Muhammad Umer snatched the key of motorcycle from Azhar Ehsan and handed it over to Muhammad Yousuf, petitioner who occupying the driving seat was about to move with. Muhammad Umer on the rear seat when Ashfaq, Amar Ibrahim and Saadullah intervened and simultaneously Azhar Ehsan deceased putting his hand on the handle of the motorcycle resisted them from moving whereupon Anees alias Muhammad Umar taking out pistol fired at Azhar Ehsan which hit on the right side of his neck. The complainant and above-named eyewitnesses apprehended both the accused at the spot with pistol. Azhar Ehsan succumbed to the injury at the spot. Saadit Mehdi (P.W.9) Inspector/S.H.O. Police Station Old Kotwali, reaching at the spot took into custody the accused alongwith pistol and motorcycle and also recorded statement of the complainant on the basis of which a case was registered vide F.I.R. Exh.PD/1 on the same day against the accused. During spot inspection the Investigating Officer prepared the injury statement Exh.PB and inquest report Exh.PC of the deceased and dispatched the dead body for post-mortem examination. He collected blood-stained earth from the place of occurrence in a sealed parcel through memo. Exh.PH. A 30-bore pistol alongwith four live bullets snatched by Ashfaq Ahmad complainant from appellant Anees alias Muhammad Umer were produced by him before the Investigating Officer. The crime weapon and motorcycle belonging to deceased were taken into possession vide recovery memo. Exh.PE and Exh.PF respectively. After completion of investigation the accused were sent to face trial before Special Court Anti-Terrorism-II, Multan.
6. Learned trial Court read over charge to the accused persons to which they did not plead guilty and claimed trial. To substantiate accusations prosecution examined 10 witnesses. After completion of prosecution evidence the statements of accused under section 342, Cr.P.C.
Recorded. Learned Special Court on conclusion of the trial found the appellant and petitioner guilty of the offence and convicted/sentenced them to death under sections 302/34, P.P.C. And rigorous imprisonment for ten years with a tine of Rs,20,000 each under section 392, P.P.C. And in default of payment of fine to undergo simple imprisonment for one year each through judgment dated 25- 11-1997.
7. The appellant and petitioner filed Criminal Appeal No,23 of 1997 (ATSC). Learned trial Court also forwarded Murder Reference No,9 of 1997 to the High Court. A Division Bench of learned High Court while dismissing the appeal confirmed the death sentence awarded to appellant under section 302, P.P.C. But conviction/sentence of petitioner under section 302, P.P.C. Was set aside. However, learned Division Bench of the High Court maintained conviction/sentence of appellant and petitioner under section 392, P.P.C.
8. The appellant preferred Jail Petition No,148 of 1999. Leave to appeal was granted to appellant vide order dated 5-9-2001. However a notice was issued to petitioner Muhammad Yousuf to show cause as to why his sentence of imprisonment of 10 years be not converted into death penalty. It seems that on receipt of notice the petitioner preferred Jail Petition No, 187 of 2001 which is barred by 1370 days.
9. Learned counsel for convict/appellant Anees Ahmed stated that he is not pressing appeal on merits except praying for reduction in sentence moderately having regard to the facts and circumstances of the case particularly for the reason that appellant Anees Ahmad had fired only one bullet upon deceased Azhar Ehsan when latter attempted to overpower him while fleeing away after snatching motorcycle from him. He further stated that appellant had not committed murder of the deceased while allegedly committing offence under section 392, P.P.C. Because when deceased resisted him not to take away motorcycle then he opened fire with a view to save his skin. He further stated that the Court has already awarded 10 years' R.I. To 'appellant under section 302, P.P.C., therefore, he is not liable for sentence of death under section 302, P.P.C.
10. On the other hand learned counsel appearing for the State has opposed the plea of the appellant's counsel on the ground that convict/appellant committed crime with fire-arm knowing well that it will cause his intentional murder because even one bullet of fire-arm can prove fatal, therefore, the trial Court rightly awarded sentence of death to the appellant for the murder of the deceased. He further explained that as far as the sentence with regard to commission of offence under section 392, P.P.C. Is concerned he has been adequately sentenced for this offence independently.
11. We have heard learned counsel for both the parties and have examined the prosecution case in depth in order to ascertain whether sentence of death awarded to appellant is sustainable in eye of law on the basis of the material evidence so brought by the prosecution. On having appreciated the evidence thoroughly we are inclined to hold that guilt against appellant falling within the mischief of sections 392/302/34, P.P.C. Fully stand established. Detailed reasons in this behalf need not to be discussed because appellant's counsel himself had opted not to press the appeal on merits but to pray for reduction in the quantum of sentence.
12. Now turning towards the plea of appellant's counsel it is to be seen that the prosecution case as it has been unfolded in F.I.R. Stands fully established namely that appellant Anees Ahmad alongwith Muhammad Yousuf committed crime of snatching motorcycle from deceased being fully armed with deadly weapon and their such action falls within the mischief of section 392, P.P.C.
And after completion of said Offence when both the accused were fleeing away. The deceased alongwith his companions as a last resort attempted to resist the accused so they may not take away motorcycle. At that time appellant Anees Ahmad sitting on its rear seat, he took out a pistol from his trouser and 'opened fire which landed on the vital part of the person of the deceased and proved sufficient to cause his death. Therefore, under these circumstances the action of both the accused to the extent of snatching of the motorcycle will be considered in furtherance of common intention but murder of deceased Muhammad Yousuf will not be held responsible because he was driving the motorcycle being seated on the front seat and it was the appellant who opened fire upon the deceased. It has also not come on record that Muhammad Yousuf had a knowledge that appellant is armed with a pistol. Moreover, there is no evidence on record as well that appellant fired upon the deceased Azhar Ehsan at the instigation of Muhammad Yousuf. Therefore, for such reason no other conclusion can be drawn except that appellant Anees Ahmad alone was responsible for the offence of murder.
13. Next question is as to whether appellant is entitled for the lesser sentence for the offence committed by him falling within the mischief of section 302, P.P.C. In this behalf it may be noted that section 302(b), P.P.C. Envisages sentence of death or life imprisonment as Tazir having regard to the facts and circumstances of the case. There is no gain in saying that normal penalty for the commission of offence of murder is death and when material available on record spell out the circumstances that the accused person has committed the murder intentionally then he cannot be awarded lesser sentence except death penalty. As it has been pointed out hereinabove that both the accused snatched motorcycle from the deceased when he has gone alongwith his friends to fruit shop. The deceased had no enmity or intimacy with them, therefore, they committed the offence falling within the mischief of section 392, P.P.C. To deprive him from the motorcycle if the accused persons had not committed murder of deceased and had succeeded in fleeing away after commission of the offence of robbery without causing murder of the deceased there would have been no two opinions that the appellant has been adequately sentenced alongwith Muhammad Yousuf. But facts and circumstances of the case as well as evidence available on record suggests to hold that appellant Anees had intentionally committed the murder of deceased by opening fire on deceased who was trying to protect the motorcycle from the accused which has already been snatched by him as well as 'Muhammad Yousuf, therefore, the possession of pistol as well as making firing while sitting on the back seat leads to draw inference that appellant had full knowledge that fire with pistol can prove fatal. As such appellant can conveniently be stamped to be a person who has committed intentional murder of deceased. As such facts and circumstances of the case suggests us to hold that when the accused had committed brutal cold- blood murder without any justification he deserves to be dealt with strictly according to law and adequate sentence should be awarded to him which may serve deterrence for like-minded persons instead of granting lesser punishment without justification. In this behalf reference may be made to the case of Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 SC 12). Relevant paras. Therefrom are reproduced hereinbelow:-- "15. Adverting now to the question of sentence, Mr. Zamir Hussain, learned counsel for the complainant has argued that in case motive has been successfully established by the prosecution and there are no mitigating circumstances available in the case to justify awarding of lesser punishment of life imprisonment to accused Ghulam Asghar, maximum penalty of death should have been awarded to the said accused. The contention of Sardar Muhammad Ishaq, on the other hand, was that as benefit has already been allowed to accused Ghulam Asghar by the High Court for which reasons have also been assigned, further interference by this Court on the question of sentence would be unwarranted.
16. Several judgments of this Court can be referred to in support of the contention of Sardar Muhammad Ishaq (See Niaz Ahmad v. Naim Akhtar 1977 SCM R 159; Muhammad Mukhdoom v. The State 1984 SCMR 837; Muhammad Yaseen v. Muhammad Shafique 1997 SCM R 1527; Akram Beg v.
The State 1998 SCM R 317; Muhammad Ishaque Khan v. The State PLD 1994 SC 259; Muhammad Ashraf v. The State 1981 SCM R 856 and Ghulam Muhammad v. The State 1972 SCMR 393. The said judgments clearly indicate that reluctance has been shown by this Court to interfere with the sentence awarded by the High Court unless the sentence is against law or it is not in consonance with sound judicial principles. However, as pointed out earlier, the findings of the learned Judges in the High Court that motive for commission of the crime was shrouded in mystery are not warranted by the circumstances of the case. Even otherwise, it is erroneous to assume that in every case, if motive for commission of the crime is not established by the prosecution, benefit of lesser punishment of imprisonment for life should go to the accused. We would like to point out that this principle cannot be applied in every case as a general rule. There may be cases where, though, motive is not established, but owing to heinous nature of the crime the accused may not be entitled to any leniency while awarding punishment to. Him. Therefore, the question would depend upon the circumstances of each case. However, circumstances of the present case clearly indicate that there are no mitigating factors, benefit of which may go to appellant Ghulam Asghar. The circumstances of the case indicate that the act of the accused was too brutal and merciless. The deceased was a young man of about 18 years and he was deprived of his life when he was in the prime of his youth. It is no gainsaying that if circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court. In Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452 tendency of the Courts to find pretext to alter a sentence of death to imprisonment for life was disapproved by this Court in strong words. This judgment has been followed by this Court in other cases as well. In Bismillah v.
Muhammad Jabbar 1998 SCMR 860, recently decided by this Court, benefit of lesser punishment allowed to the accused by the High Court by conversion of death penalty to sentence of imprisonment for life was declined in view of the heinous nature of the crime."
15. Thus following the dictum laid down in the above judgment we are constrained to hold that on the facts and circumstances of the instant case, no justification exists for awarding lesser penalty to appellant for the offence of intentional murder.
16. Learned counsel then attempted to argue that the appellant is a young man of 26 years, therefore, on this score conviction may be reduced. We see no force in this plea because admittedly he committed offence of robbery and then murdered the deceased in brutal manner, as such being a hardened criminal he is not entitled for any leniency on the ground of age, as such this argument being devoid of force is repelled.
17. Now turning towards the case of Muhammad Yousuf it is to be noted that while granting leave to appellant Anees Ahmad notice was issued to him to explain as to why his sentence should not be enhanced from 10 years to death. Probably on receipt of the notice petitioner filed a petition, which is barred by time. We are of the considered opinion that petitioner Muhammad Yousuf has already been awarded adequate sentence for the offence falling within the mischief of section 392, P.P.C.
However, as he is not responsible for committing murder of deceased, therefore, sentence of death cannot be awarded to him.
18. The petition filed by Muhammad Yousuf is barred by 1370 days. Moreover, on merits he has no case because prosecution has successfully proved guilt of accused falling within the mischief of section 392, P.P.C. For which he has been adequately sentenced, as such the petition deserves to be dismissed both on merits as well as limitation.
' Thus,' for the foregoing reasons both the appeal and petition are dismissed.
19. After conclusion of proceedings we have dismissed the matters by means of our short order of even date and here are the reasons for the same.
Appeal and .