' GHULAM NABI SOOMRO, J.--- The appellant, a Nigerian National, on 19-5-2001 was found carrying in his belly some 58 capsules of heroin powder weighing about 956 grams and was apprehended at the Quid-e-Azam International Airport, Karachi. He was later challaned for trial before Special Court, Control of Narcotic Substances, Karachi Division. At trial a charge against him was framed accordingly.
2. Having pleaded guilty to the charge he has been punished with R.I. For five years and fine of Rs,50,000.
3. The prayer made by the appellant through this jail appeal is for reduction of sentence.
4. We have gone through the record and heard the parties. An appeal against such sentence is provided under section 412, Cr.P.C. Only, which contemplates its maintainability only to the extent or legality of -such sentence. Looking to the quantity of narcotics and keeping in view, the fact that this crime is being repeated since some years in the past, in this fashion, we are of the view that the sentence recorded against the appellant is proper. The maximum punishment provided for the offence under the law is R.I. For seven years and fine. No legal flaw in the impugned judgment is further noticed or pointed out. Consequently, the appeal is dismissed. The appellant is remanded to jail custody.
Appeal dismissed.
2003 P Cr. L J 442 [Lahore] before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ ABID KHAN---Appellant versus THE STATE---Respondent Criminal Appeal No,434 and'Murder Reference No,259 of 1998, heard October, 2002.
Penal Code (XLV of 1860)--- ----S. 302---Appreciation of evidence---Sentence, reduction in---Ocular account had been furnished by truthful and natural witnesses who were residents of the same locality and had given true account of the incident---Ocular evidence had been duly supported by the medical evidence---F.I.R. Had been promptly lodged after the incident---Complainant had no motive to falsely implicate the accused-Defence had been unable to shake the credibility of the prosecution witnesses during cross-examination---Accused. In his statement under 5.342, Cr.P.C. Before the- Trial Court, had given his age as 20/21 years meaning thereby that the accused was aged 17/18 years at the time of occurrence---Age stated by the accused in the Trial Court had not been challenged by the prosecution at any stage---Acquitted co-accused had opened the fire which missed the target and thereafter ordered the appellant (son) a young boy of 17/18 years to kill the deceased---Accused had fired at the deceased under the command of his father and had not repeated the fire---Death sentence to the accused, in the light of the circumstances, was not warranted---High Court altered the death sentence to life imprisonment---Benefit of S.382-B, was granted to the accused. [p. 446] A & B Liaqat Shah and others v. The State 1985 SCM R 1415; Alam Khan and others v. The State 1976 SCM R 128; Mst. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCM R 256 and Abdul Qadoos v. The State 1999 PCr.LJ 93 ref. Asghar Khan Rokhari for Appellant. Is'nfaq Ahmad Chaudhry for the State. Date of hearing: 9th October, 2002.
' RAM MUHAMMAD SABIR, J.--- Abid Khan appellant aged 20/21 years was sent up for trial in case F.I.R. No,173 dated 14-10-1995 under section 302, P.P.C. Registered at Police Station Mochh, District Mianwali alongwith his father Ghulam Qadir (57/58 years) for murder of Muhammad Hayat (70 years). Learned Sessions Judge, Mianwali acquitted Ghulam Qadir by giving him benefit of doubt but at the same time relying upon the prosecution evidence convicted the appellant vide judgment dated, 29-4-1998 and sentenced him to death. He was further directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased, in default of payment of compensation same would be liability against his person and property. He challenged his conviction through instant appeal and reference for confirmation of his death made by trial Court is also before us.
2. Briefly the facts of the case as disclosed in the F.1.R. Exh.P.E. Are that on 14-10-1995 at about 7-00 a.m. Khan .Bahadur P.W.9, Muhammad Khan P.W.10 and Muhammad Azeem (not examined) were present at the Dera of Muhammad Hayat deceased, when the latter was on his way to his Dera after having attended the call of nature in the nearby Sarkandas. In the meantime Abid Khan appellant and Ghulam Qadir acquitted accused emerged there while armed with rifles. Abid Khan shouted Lalkara that they have come to teach a lesson to the complainant party for having fired at their buffalo. Ghulam Qadir fired at Muhammad Hayat but the fire remained ineffective. Ghulam Qadir asked his son Abid Khan that Muhammad Hayat should not go alive and in response to his command Abid Khan fired with his rifle hitting Muhammad Hayat in the right flank. The afore- referred three P.Ws. Rushed to the spot on gun reports when the accused persons extended life threats to them. Muhammad Hayat breathed his lost at the spot.
3. Motive for the occurrence as alleged by the prosecution is that ten days before the incident a buffalo of the accused persons was grazing in the jungle. Wild animals used to damage the cattle and the crops of the complainant party. The complainant party mistook the buffalo as a wild boar and fired hitting the same but it survived.
4. On 14-10-1995 at 11-15 a.m. Zafarullah, S.-I. P.W.13 drew up F.I.R. Exh.P.E. On the statement of Khan Bahadur P.W.9 and then reached the spot where the dead body of Muhammad Hayat was lying. He prepared injury statement Exh.P.J., inquest report Exh.P.K. And dispatched the dead body to the mortuary at Mianwali under the escort ill Constable Nazir Ahmad. The Investigating Officer inspected the spot recorded statement of the witnesses, collected blood-stained earth and secured it vide memo. Exh.P.A. Rough sketch of the place of occurrence Exh.P.L. Was also prepared by him. After post-mortem examination the escorting Constable Nazir Ahmad brought back the last-worn clothes of the deceased which were taken into possession through memo. Exh.P.B.
Appellant was arrested on 11-11-1995 who led to the recovery of rifle P.4 and three live bullets P.5/1-3 on the same day taken into possession vide memo. Exh.P.C.
5. On 8-11-1995 Muhammad Altaf Patwari visited the spot on pointation of the witnesses and prepared site plant in duplicate Exh.P.A. And Exh.P.A./1. The investigation was thereafter taken by Ahmad Yar S.-I. P.W.8 who arrested Ghulam Qadir accused on 2-12-1995 and got recovered rifle P.6 taken into possession vide memo. Exh. P. D .
6. On 14-10-1995 at 1-20 p.m. Dr. Sher Ali Khan P.W.12 made autopsy on the dead body of Muhammad Hayat and observed on its external examination that it was of 70 years old person and moderately built. Eyes and mouth were pale and closed. Rigor mortis had developed. Both the fists were clinched. There was lot of blood on the shirt and Chader having holes corresponding to the injuries. The post-mortem Examiner found the following injuries on the dead body:--
(1) An entrance fire-arm wound circular 0.5 c.m. x 0.5 c.m. Edges were burnt on the front of right chest, 5 c.m. Below and lateral to right nipple.
(2) An exit fire-arm wound 2 c.m. x 1 c.m. x irregular, with 7 everted edges on the back of left abdomen on the post axillary line 13 c.m. Medial and superior to anterior superior iliac spine.
' On opening the thorax, 6th rib was found fractured. Right pleural cavity was found injured having blood. The abdominal aorta was injured.
' On opening the abdomen, it was found injured under injury No,2. Peritoneum was injured above the liver and stomach duodenum. Diaphragm was injured on its right side. Stomach was healthy and was full of undigested food. Small intestine was healthy and full of liquid stool. Large intestine was healthy and empty. Superior surface of the liver alongwith its blood vessels was injured. Left kidney was torn into pieces. Bladder was healthy and empty.
' In the opinion of the Post Mortem Examiner the cause of death in this case was haemorrhage and shock caused by projectile which travelled from right chest to left abdomen causing injury to the liver vessels, abdominal aorta and the kidney. These injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was immediate and between death and autopsy was 5 to 7 hours. Under his report Exh.P.H., the post-mortem examiner certified that Muhammad Hayat suffered death by violence.
7. On receipt of the challan learned trial Court framed charge under section 302/34, P.P.C. Accused denied the charge and claimed trial. Prosecution examined 13 witnesses in all. Ghulam Muhammad Constable P.W.1 conveyed sealed parcel of blood-stained earth to Chemical Examiner, Muhammad Altaf Patwari P.W.2 prepared site plan in duplicate, Nazir Ahmad Constable P.W.3 got post mortem of dead body and attested the recovery memo. Of last-worn clothes of the deceased. Ata Ullah Head Constable P.W.4 kept sealed parcels in Police Malkhana for some time and then got it transferred to the concerned office. Raees Khan A.S.-I. P.W.5 arrested Ghulam Qadir accused in the case. Muhammad Khan P.W.6 identified the dead body before post-mortem examination.
Muhammad Asghar P.W.7 attested the recovery memo. Of rifle P.4 and bullets P.5/1-3. Ahmad Yar, S.-I. P.W.8 is the Investigating Officer. Khan Bahadur P.W.9 and Muhammad Khan P.W.10 are the eye- witnesses of the occurrence. They also deposed about the motive. Machal Shah, Laboratory Technician P.W.11 proved the report of Serologist about blood-stained earth. Dr. Sher Ali Khan, P.W.12 proved the pdst-mortem report being its author. Zafarullah Khan, S.-I. P.W.13 was the last P.W. Who also investigated the case and submitted the challan.
8. The accused in their statements under section 342, Cr.P.C. Denied the incident, repudiated each piece of the prosecution evidence put to them. They claimed that they were implicated due to enmity. Learned Sessions Judge after recording prosecution evidence and hearing arguments of learned counsel for the defence acquitted Ghulam Qadar father of the appellant by giving benefit of doubt to him while the appellant was convicted in the terms indicated above.
9. Khan Muhammad Asghar Khan Rokhari learned counsel for the appellant does not challenge the conviction, however, on the question of sentence he submits that appellant under the command of his father (acquitted accused) fired at the deceased subsequent to his shot. He was a young boy.
Of 17/18 years at the time of occurrence and in compliance to the order of his father caused the death of Muhammad Hayat deceased, therefore, the capital sentence is not warranted and his sentence be reduced to imprisonment for life and in support of his contention he has relied upon Liaqat Shah and others v. The State 1985 SCM R 1415. Alam Khan and others v. The State 1976 SCM R 128, Mst. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCM R 256 and Abdul Qadoos v. The State 1999 PCr.LJ 93.
10. Learned State Counsel concedes that the appellant has acted under the command of his father and fired at the deceased and, as such, the capital sentence is not called for.
11. Heard. Record perused. The ocular account furnished by eyewitnesses Khan Bahadur P.W.9 and Muhammad Khan P.W.10 consists of natural and truthful witnesses. They are residents of the same locality and have given true account of the incident. The deceased after easing himself in the Sarkandas was coming when appellant fired at him. The postmortem examination also shows that his stomach and bladder were empty. The ocular account furnished by the eye-witnesses is supported by medical evidence. The F.I.R. Was lodged promptly after the occurrence. Complainant has no motive to falsely implicate the accused. Defence was unable to shake the credibility of the P.Ws. During cross-examination. We are convinced that the prosecution proved its case against the appellant beyond any shadow of doubt. Learned counsel also having been convinced has not challenged the conviction and prayed for reduction of the sentence only. The prosecution proved its case against the appellant beyond any shadow of doubt. In these circumstances his conviction is maintained.
12. However, on the question of sentence we find that the occurrence took place on 14-10-1995.
Appellant was examined under section 342, Cr.P.C. By the trial Court on 28-3-1998 and his age is given as 20/21 years meaning thereby that on 14-10-1995 about 2-1/2 years earlier he was aged 17/18 years. The age stated by the accused in, the trial Court was not challenged by the prosecution at any stage. Ghulam Qadir (acquitted accused) had opened the fire first which missed the target.
He thereafter ordered the appellant a young boy of 17/18 years to kill the deceased. He fired at the deceased under the command of his father and has not repeated it. In these circumstances in the light of the precedents referred by the learned counsel for the appellant his case falls within the category of lesser punishment. In the case of Alam Khan the Honourable Supreme Court observed that the accused therein under the influence of the father killed the deceased thus the sentence of life imprisonment awarded by the High Court was maintained and the petition for enhancement of sentence filed by the complainant was dismissed.
' In the case of Liaqat Shah accused persons aged 26, 25 and 20 having been influenced in great measure by presence and action of their elder brothers participating in offence of murder, it was observed that young age of the accused persons and influence of elder brothers operating on their mind in traumatic situation entitled them to lesser penalty. The Honourable Supreme Court while maintaining .Their conviction reduced death sentence to life imprisonment with benefit of section 382-B, Cr.P.C.
' In Mst. Hafeezan Bibi's case it was observed that possibility that convicts obeying their father had committed the crime, could not be ruled out and the judgment of the High Court awarding lesser sentence in a case under section 302, P.P.C. Was not interfered and in the last case of Quetta the conviction under section 302(b), P.P.C. Was maintained but at the same time it was observed that it was Abdul Razzaq who firstly started firing with kalashanikov upon the complainant party and the appellant Abdul Qadoos fired thereafter, he committed the offence at the behest and with connivance of Abdul Razzaq, after when he started firing as a result of which Abdul Zahir and Muhammad Ewaz received bullet injuries. Both of them were then fired at by Abdul Qadoos, therefore, in the circumstances instead of capital sentence the lesser sentence for imprisonment for life was substituted.
13. In the facts and circumstances of the instant case and the citations referred above we are of the view that the appellant had fired subsequent to shot of his father and that too under his command being a young boy of 17/18 years, therefore, capital sentence of death is not warranted.
Consequently we convert his sentence from death to life imprisonment and extend him the benefit of section 382-B, Cr.P.C. The compensation awarded to legal heirs of the deceased is maintained.
The conviction is maintained and the sentence is reduced to life imprisonment. The murder reference is answered in the negative.