THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 322 of 2012
Confirmation Case No.3 of 2012
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