THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 322 of 2012
Confirmation Case No.3 of
2012
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Aftab
Ahmed Gorar
J U D GM E N T
Date of hearing: 01st February
2016
Date of Announcement: 17th February 2016
Appellant: Danial
alias Dani through Mr. Shahid
Ali Qureshi, advocate
Respondent: The State through Mr. Muhammad Iqbal
Awan Asstt: Prosecutor General Sindh
Complainant: Robin Masih
through Mr. Qadir Hussain Khan, advocate
NAIMATULLAH PHULPOTO, J.--- Appellant Danial
@ Dani S/o Ayub Masih was tried by learned VI Additional Sessions Judge,
Karachi East in Sessions case No.273 of
2006. By judgment dated 14.11.2012, appellant was convicted under Section 302
PPC and sentence to death. He was ordered to pay fine of Rs.
100,000/-, In case of default in payment of fine, he was ordered to suffer two
years R.I. Trial Court made reference for confirmation of death sentence
awarded to the accused to this Court as required under Section 374 Cr.P.C.
Being aggrieved and dissatisfied, appellant Danial
alias Dani filed Criminal Appeal No.322 of 2012
before this Court. The learned Division Bench of this Court vide short order
dated 21.05.2014 dismissed the appeal and maintained the death sentence. Reference
made by the trial Court was confirmed, for the reasons to be recorded later on.
On 26.05.2014, while recording the reasons, learned Division Bench noticed that
appellant is a young boy. Learned Counsel for appellant did not invite
attention of learned Division Bench to the statement of the accused recorded
under Section 342 Cr.P.C at the time of hearing of appeal. As such, notices
were issued to the Counsel for the appellant, prosecutor General as well as
Counsel for the complainant for re-hearing
of appeal. Learned Division Bench after hearing the learned Counsel for parties
dismissed the appeal vide judgment dated 30.05.2014 maintained the conviction.
However, reduced death sentence to imprisonment for life and answered reference
made by trial Court in negative for the following reasons:
“Coming to the
quantum of sentence, minute scrutiny of the entire evidence reveals that there
was no previous enmity between the parties not the appellant was harboring
grudge against the victim. The witnesses produced by the prosecution have
cleared deposed that they knew the appellant as well as the victim since long
and did not bring on record anything which could reflect previous grudge or ill
will. All prosecution witnesses as well as the appellant himself has admitted a
fight between the victim and the appellant in between 15 to 30 minutes prior to
the incident, the prosecution witnesses have not given the reason of such fight
but the accused has stated that the deceased was selling wine. Notwithstanding, the cause of fight, the admitted position being a
fight between the appellant and the victim which led the appellant to commit
such act. Though strictly speaking neither grave and sudden provocation
has been pleaded before the trial Court nor it appears to be a cause of grave and
sudden provocation but on account of a fight between the appellant and the
victim just before the incident in our opinion death penalty was not warranted
specially when the appellant was a young man at the time of incident and was
not a previous convict. In the case of Peer Abdul Razzak
Vs. Khalid Dad (1984 SCMR 951) the niece of the accused was struck with the
bicycle of the deceased and on complaint of the niece the accused committed
murder of the deceased and the trial Court awarded death penalty. The High Court while maintaining conviction reduced sentence to
imprisonment for life and the Apex Court maintained the reduced sentence.
Likewise, in the case of Abdul Haq
Vs. The State (PLD 1996 SC 1) the provocation offered by the deceased to
the accused was treated as mitigating circumstances and death penalty was
converted into imprisonment for life.
2. Complainant/State filed Criminal Appeal
No.33-K of 2014 before Honourable Supreme Court. Vide judgment dated
19.03.2015, Honourable Supreme Court set aside the judgment passed by learned
Division Bench of this Court dated 30.05.2014 and matter was remanded to this
Court for a fresh decision of Criminal Appeal No.322 of 2012 and the connected
Murder Reference No.03 of 2012, after hearing the learned Counsel for all the
parties and attending to the record of the case afresh.
3. We have carefully heard Mr. Shahid Ali Qureshi learned
Advocate for the appellant, Mr. Mohammad Iqbal Awan A.P.G, assisted by learned
Advocate for the complainant and perused the entire evidence.
4. Learned Advocate for appellant did not
press the appeal on merits and contended that appellant was young boy at the
time of commission of offence and was not previous convict. It is contended
that it was not the case of premeditated cold blooded murder. It is further contended
that there was no previous enmity between the parties. It is lastly argued that
there are mitigating circumstances to convert death sentence to imprisonment
for life. In support of his contentions, he has relied upon the cases reported
as MUHAMMAD ISMAIL and others v. THE STATE and others (2013 PCr.LJ,
478), RASHID BASHIR v. THE STATE and others (2011 PCr.LJ
1522) and BILAWAL v. THE STATE (2012 MLD 1419).
5. Mr. Mohammad Iqbal Awan APG assisted by
learned Advocate for complainant argued that appellant was aged about 21/22
years at the time of incident. It is further argued that there was a quarrel in
between accused and deceased on 07.05.2006 at 1700 hours in cabin but due to intervention
of persons, appellant went away. After half an hour at 5:30 pm, deceased came
out of pan Cabin to purchase goods for his house. Appellant Danial
alias Dani emerged and attacked upon deceased with Churri. Learned APG argued that it was cold blooded
premeditated murder of young person. It is submitted that at the time of first
quarrel/fight, accused was empty handed, thereafter, he came armed with knife
and caused three knife blows to deceased. He argued that youth of accused alone
does not constitute extenuating circumstance. Learned APG
lastly argued that there are no mitigating circumstances in this case to
convert the sentence of death to one of the imprisonment for life. In support
of contentions reliance has been placed upon the cases of Muhammad Saleem v. The State (2001 S C M R 536) and FAISAL ALEEM
versus THE STATE (PLD 2010 SC 1080).
6. The facts of this case as well as
evidence produced before the trial Court find an elaborate mention in the
judgment of the trial Court as well as in the judgment dated 30.05.2014, passed
by this Court in Criminal Appeal No.322/2012. Therefore,
same may not be reproduced here so as to avoid duplication and unnecessary
repetition.
7. Learned Advocate for appellant did not
press the appeal on merits but we have minutely examined the evidence for our
satisfaction. PW-3 Qaiser Manzoor
has deposed that on 07.05.2006, he along with his friend was taking tea at
Hayat Hotel situated at main road, Christian Town, Korangi
where he heard noise and saw that appellant was causing knife blows upon
deceased Naeem Masih. He
caught hold the appellant from his backside and snatched knife from his hand.
Police personnel came there and he handed over custody of the accused to the
police with crime weapon. PW-4 Nadeem George in his
evidence has deposed that on 07.05.2006 he along with his friends PW Qaiser Manzoor and Razzak went to take tea. They heard commotion and saw that appellant
was causing knife blows to deceased Naeem, PW Qaiser Manzoor caught hold
accused and he snatched knife from his hands. Thereafter, they handed over
custody of accused with knife to SI Iqbal. PW-6 Saleem Anjum
is brother of deceased. He has deposed that he was taking tea at the relevant
time at Hayat Hotel. At 5:30 pm, his brother came out from his pan shop and
reached in front of Hayat Hotel suddenly, appellant appeared there from street,
he was carrying knife in his hand. He attacked upon deceased Naeem. PW-7 Naveed George in his
evidence has stated that on 07.05.2006, he was present at his shop. At 5:00 pm
he heard noise outside his shop and saw that there was exchange of hot words
between the appellant and deceased Naeem. Persons of
the locality gathered, due to their intervention, appellant went away.
Thereafter, at 5:30 pm, he came out from his shop for taking tea at Hayat
Hotel, he heard commotion, turned back and saw that appellant was causing knife
blows to deceased Naeem. ASI
Muhammad Iqbal deposed that at the relevant time he was busy in patrolling.
Some persons had caught hold of appellant and handed over his custody and knife
with which accused had committed murder of deceased.
8. Accused in his statement recorded under
Section 342 Cr.P.C at Ex-19, has mentioned his age about 23 years and stated
that deceased was selling wine. Appellant has pleaded innocence and claimed his
false implication. Accused neither examined himself on oath nor examined any
witness in defence.
9. We have carefully examined the respective
contentions as agitated on behalf of the appellant and for the State in the
light of evidence on record and have carefully perused the judgment of the
trial Court. It is the matter of record that factum of young age was never raised
by accused before police during investigation so also before the trial Court.
Learned Counsel for the appellant was asked by us that why question regarding
age was not raised before the learned trial Court but he could not
satisfactorily answer except that statement of accused was recorded under
Section 342 Cr.P.C on 11.10.2012, where his age is mentioned about 23 years. It
is generally observed that trial Courts mention the age of the accused at the
time of recording statement under Section 342 Cr.P.C at random on the basis of
physical appearance of accused or sometimes at the instance of the accused.
Thus, it cannot be considered as gospel truth to determine the quantum of
sentence. In this regard, we are fortified by dictum laid down in the case of Muhammad Saleem v. The
State (2001 SCMR 536).
10. In the case of MUHAMMAD YAR
versus THE STATE (1997 SCMR 401), Honourable Supreme
Court of Pakistan has observed as under:-
“Lastly an objective attempt was made by the learned
counsel for the appellant that the appellant was young boy of 18 years, hence
his sentence may be altered from death to life imprisonment. We are not
convinced by his such contention. Young age by itself
is not a mitigating circumstance. The appellant had killed three persons in
broad daylight. He does not deserve any sympathy. We have gone through the
evidence produced by the prosecution, (sic) in juxtaposition. The trial Court
as well as the Appellate Court have properly assessed the evidence produced by
the prosecution and the defence version. It is neither the case of misreading
or non-reading of the evidence. Hence there is no material in the appeal which
may call for interference by this Court. In result of our above said
observations the appeal is dismissed.”
11. There is no cavil to the preposition that
youth of accused alone does not constitute an extenuating circumstance as would
justify imposition of lesser penalty prescribed by law. Reliance is placed upon
the case of Faisal Aleem
v. The State) PLD 2010 SC 1080.
The relevant portion is re-produced as
under:-
“There is no cavil to the proposition that “youth of
accused alone does not constitute such an extenuating circumstance as would
justify imposition of lesser penalty prescribed by law” Harnamun
v. Emperor (AIR 1928 Lah. 855), Maghar Singh Naghar Singh and
others. Emperor (AIR 1941 Lah.220), The State
v. Tasiruddin (PLD 1962 Dacca
46), Sher Hassan v. The State (PLD
1959 SC (Pak) 480), Ghulam Hyder v. The State (1970 PCr.LJ 1052)”.
12. We have come to the conclusion that prosecution
has proved it’s case by
cogent evidence that three (03) successive Churri/Knife
blows were inflected by the appellant on the chest and abdomen of deceased,
ocular evidence was corroborated by medical evidence and no other evidence is
required in present case to establish the factum of intention. It is settled
law that intention does not imply or assume the existence of some previous
design or forethought intention means an actual intention, existing intention
of the moment and is proved by or inferred from the act of the accused and the
circumstances of the case as held by Honourable Supreme Court in the case of Munawar Ali Vs. The State (2001
SCMR 614).
13. The upshot of above mentioned discussion is
that no benefit can be extended in favour of appellant for young age which does
not constitute the mitigating circumstance, in view the circumstances of this
case. According to prosecution evidence appellant committed murder in a brutal
manner by inflicting three knife blows to the deceased. Hence, appellant does
not deserve any leniency in sentence. Trial Court has examined each and every
piece of evidence carefully and appreciated evidence according to settled
principles of law.
14. Honourable Supreme Court in the case of
MISS NAJIBA and others versus AHMED SULTAN alias Sattar and 2 others (2001 SCMR
988) has observed that when in the case, involving capital punishment
prosecution proves its’ case, Court is duty bound to impose deterrent
punishment to make evil doer an example and warning to likeminded people.
15. Honourable Supreme Court of Pakistan in the
case of DADULLAH and another versus The STATE (2015 SCMR 856) has held as under:-
“…………… Death sentence in a murder case is a normal penalty
and the Courts while diverting towards lesser sentence should have to give
detailed reasons. The appellants have committed the murder of two innocent
citizens and also looted the bank in a wanton, cruel and callous manner. Now a days the crime in the society has reached an alarming
situation and the mental propensity towards the commission of the crime with
impunity is increasing. Sense of fear in the mind of a criminal before
embarking upon its commission could only be inculcated when he is certain of
its punishment provided by law and it is only then that the purpose and object
of punishment could be assiduously achieved. If a Court of law at any stage
relaxes its grip, the hardened criminal would take the society on the same
page, allowing the habitual recidivist to run away scot-free or with punishment
not commensurate with the proposition of crime, bringing the administration of
criminal justice to ridicule and contempt. Courts could not sacrifice such
deterrence and retribution in the name of mercy and expediency. Sparing the
accused with death sentence is causing a grave miscarriage of justice and in
order to restore its supremacy, sentence of death should be imposed on the
culprits where the case has been proved.”
16. For the above stated reasons no occasion
has been found by us for reducing the appellant’s sentence from death to
imprisonment for life.
17. As a sequel to the discussion made above,
appeal is dismissed and Reference for confirmation of death
sentence is answered in affirmative.
J U
D G E
J U D G E
Gulsher/PS