2009 SCMR 1273

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD YAQOOB—-Appellant

Versus

THE STATE—-Respondent

Criminal Appeal No.199 of 2003, decided on 6th May, 2009.

(On appeal from the judgment, dated 22-10-2002 of the Lahore High Court, Multan Bench passed in Criminal Appeal No.302 of 1999).

(a) Penal Code (XLV of 1860)—

—S. 302(b)—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted to accused by Supreme Court to examine whether he was entitled for modification in the quantum of his sentence in view of the judgment in the case of Khawand Bakhsh v. State PLD 2000 SC 1, relied upon by him.

Khawand Bakhsh v. State PLD 2000 SC 1 ref.

(b) Constitution of Pakistan (1973)—

—Art. 185—Appeal to Supreme Court—Appraisal of evidence—Principle—Each case has to be adjudged on its own facts and circumstances—Supreme Court can come to its own independent findings upon re-examination of the evidence untrammelled by the opinions of the lower Courts.

Noora and another v. The State PLD 1973 SC 469 ref.

—-Application of—Jurists and Judges possessed of rich experience and a long line of rulings in criminal cases tell us that there is hardly a criminal case which would be cent per cent identical on all fours to other case—Background and causes for commission of offence may differ from case to case—Ruling in one criminal case, therefore, is carefully considered before citing it as a precedent in its application to the other.

(d) Precedents—

—-Application and scope—Everything said in a judgment more particularly in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case; it may be regarded as having a persuasive value rather than a binding precedent.

The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

(e) Penal code (XLV of 1860)—

—-S. 302(b)—Appraisal of evidence—Sentence, reduction in—Complainant for the murder of his son had roped in fourteen persons including the accused—None had received any injury from the complainant side except the deceased, despite alleged large scale indiscriminate firing—Previous long standing enmity existed between the parties including litigation upto the level of Supreme Court—Thirteen co-accused of accused had already been acquitted—Although accused was stated to be armed with a .222 rifle and crime-empties of the same calibre were also recovered from the spot, yet during investigation a .7 mm licensed rifle was recovered from him, which to some extent weighed against the prosecution and a circumstance akin to the mitigating circumstance in his favour—Conviction of accused was upheld but his sentence of death was altered to imprisonment for life in circumstances.

Khawand Bakhsh v. State PLD 2000 SC 1 rel.

Israr Ali v. The State 2007 SCMR 525; Ansari Ahmad Khan Barki v. The State 1993 SCMR 1660; Allah Dad and another v. The State 1995 SCMR 142; Muhammad Tahir Khan v. The State 1983 SCMR 1169; Noor and another v. The State PLD 1973 SC 469 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Asif Mumtaz, D.P.-G., Punjab for the State.

Date of hearing; 28th April, 2009.

JUDGMENT

SAYED ZAHID HUSSAIN, J.— Muhammad Yaqoob appellant along with thirteen others faced trial on the allegation of committing murder of Munir Ahmad deceased. All others were acquitted but he was convicted by the Judge, Suppression of Terrorist Activities Court, Multan, for offences under sections 302/324/148/149, P.P.C. and was sentenced to death with the direction to pay Rs.2,00,000 as compensation and in default thereof to undergo six months’ R.I. This was vide judgment dated 24-8-1999. He filed Criminal Appeal No.302 of 1999, which was heard by the learned Division Bench of the Lahore High Court, Lahore, Multan bench, and was dismissed on 22-10-2002 confirming the death sentence and maintaining the conviction and sentence as recorded by the Trial Court. He then filed petition before this Court (Crl.P.L.A. No.871-L of 2002) in which leave was granted on 18-4-2003. For the facility of perusal, its relevant portion reads as follows:–

“(2) Precisely stating facts of the case are that on 16-6-1995 a case F.I.R. No.185 Exh.P.A. was registered at Police Station Mitro District, Vehari on the complaint of one Muhammad Hussain, who has alleged that Muhammad Yaqoob petitioner along with thirteen others opened indiscriminate firing upon the deceased and another, as a result whereof, shot fired by the petitioner proved fatal, and Muhammad Munir died instantaneously. After registration of the case, investigation commenced. During the course whereof besides recovering other incriminating material from the place of incident an empty of .222 bore rifle was also taken into possession. The petitioner was arrested on 2-8-1995 and, on his pointation, a .7 m.m. rifle with licence Exh.P.H. dated 15-8-1995 was recovered. Incriminating empty as well as rifle were sent for the report to Forensic Expert, who opined ‘that the fire has not been made from the .7 m.m. rifle. After completion of the investigation, petitioner was sent up to face trial before the Judge, Special Court under Suppression of Terrorist Activities. As he did not plead guilty to the charge read over to him, therefore, prosecution led evidence to substantiate the accusation. On completion of trial, petitioner was found guilty for the commission of the offence. Accordingly he was convicted and sentenced under section 302(b), P.P.C. Petitioner preferred appeal before the Lahore High Court, Multan Bench which has been dismissed.

(3) Learned counsel stated that he is not pressing the petition on merit but is making request for reduction in quantum of sentence in view of the judgment in the case of Khawand Bakhsh v. State PLD 2000 SC 1 wherein non-matching of the crime empty with the crime weapon was considered to be a mitigating circumstance and the sentence of death awarded to the accused was converted into life imprisonment.

(4) After hearing learned counsel, we grant leave to appeal to examine whether petitioner is entitled for modification in the quantum of sentence in view of the judgment relied upon by him.”

2. Since the leave was granted on a limited point of quantum of sentence, the learned counsel has addressed arguments on this aspect. He has cited precedents of this Court to persuade us to. alter the conviction i.e. death sentence to lesser penalty on the ground that the crime empty recovered from the spot was of .222 rifle whereas the recovery made from the appellant was of .7 m.m. rifle and the fire had not been made from .7 m.m. rifle. The learned Deputy Prosecutor General Punjab has also been heard on this aspect.

3. At this juncture, the discourse of the occurrence as given by the learned Division Bench of the Lahore High Court may be adverted to which is:—

“that on 16-6-1995 Muhammad Hussain, the complainant along with Jahan Khan was standing on the Banna of Killa No.4/5 of square No.44 for the purpose of harvesting the wheat crop: In the meanwhile they saw that Munir Ahmad son of the complainant and Ahmad Khan were coming on tractor No.2409/VRD. Ahmad Khan was driving the tractor while Munir Ahmad was sitting on the mudguard. When they reached near the Dhari of Ghulam Nabi alias Mithoo, Muhammad Ramzan armed with rifle .7 m.m., Muhammad Yaqoob armed with rifle .222 and other accused namely, Abdul Karim, Hayat, Khuda Bukhsh, Noor Muhammad, Sanaullah, Mithoo, Mehboob, Abbass, Ghulam Nabi, Abdul Razzaq, Afzal and Falak Sher all armed with fire-arms came out from the said Dhari and started firing. On this, Ahmad Khan turned the tractor towards his village when Muhammad Ramzan and Ghulam Nabi raised Lalkara that they should not go alive. Upon this, Muhammad Yaqoob fired at Munir Ahmad which hit him on his back side and he fell down from the tractor. Ahmad Khan jumped from the tractor and went in the Khal to save his life. The complainant and Jehan Khan tried to come near the deceased but the accused made indiscriminate firing on them and they also saved their lives by taking refuge in the Khal. The accused thereafter fled away from the spot. The complainant and the P.Ws. came near Munir Ahmad who had already expired.

The motive alleged was civil litigation for pre-emption between the parties for 22 years.

(4) Investigation of the case was taken over by Muhammad Younas A.S.-I. (P.W.10). After registration of the case, he went to the spot; took into possession the blood-stained earth vide memo. Exh.P.D.; the tractor was taken into possession vide memo. Exh.P.C.; also secured empty cartridges vide memo Exh.P.D.; then he went to the Dhari of the complainant where the dead body of Munir Ahmad was lying; there he prepared inquest report Exh.P.N.; injury statement Exh.P.J. and also prepared the site-plan of the place of occurrence Exh.P.L. The last worn clothes of the deceased were taken into possession vide memo Exh.P.E. The investigation of the case was then taken over by Inspector Muhammad Hussain examined as P.W.13. Muhammad Yaqoob along with his co-accused was arrested on 2-8-1995. He while in custody led to the recovery of .7 m.m. rifle which was taken into possession vide memo. Exh.P.H.. After completion of the remaining formal investigation, 13 accused were challaned to face the trial.

(5) At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.M.13, report of the Serologist Exh.P.N., report of the Forensic Science Laboratory Exh.P.O. and closed the prosecution case. After that, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded false implication. After conclusion of the trial, except Muhammad Yaqoob, the present appellant, all the remaining accused were acquitted.”

4. In the context, the contention of the learned counsel as to modification of the sentence has received our due attention in view of the above background of the matter. In the case noted in the leave granting order Khawand Bakhsh v. State PLD 2000 SC 1 it had been found that the rifle recovered did not match with any of the crime empties recovered from the spot. Considering it to be extenuating circumstance, it was observed that “the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder. We order accordingly, and alter his death penalty to imprisonment for life plus a fine of Rs.50,000, or in default to undergo further R.I. for one year with benefit of section 382-B, Cr.P.C.” In Israr Ali v. The State 2007 SCMR 525 the learned Shariat Appellate Bench of this Court, noted that “This brings us to the question of sentence more particularly that appellant/ convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence. We have examined this question in the light of all the circumstances surrounding the guilt. We find mitigating/extenuating circumstance in favour of the appellant for lesser penalty in as much as, the prosecution had failed to connect the convict with the circumstances of photographs recovered from the spot and the photographs recovered from the bag of the convict- because there was no photograph of the deceased in the said photographs as mentioned above. Photograph of one Hafeez was found who was not associated by the police in the investigation.” Keeping in view the circumstances of the case alteration of the death sentence into life imprisonment was ordered. In Ansari Ahmad Khan Barki v. The State 1993 SCMR 1660 also in order to meet the ends of justice, the death sentence was ordered to be converted into life imprisonment. .

Similar view was taken in Allah Dad and another v. The State 1995 SCMR 142 and Muhammad Tahir Khan v. The State 1983 SCMR 1169.

5. It may be observed that long ago this Court had laid down the rule well established for criminal matters in Noora and another v. The State PLD 1973 SC 469 that it is each case which will have to be adjudged on its own facts and circumstances and that the Supreme Court could come “to its own, independent findings upon re-examination of the evidence untrammeled by the opinions of the courts below”. Such a -conclusion was drawn by the learned Chief Justice on the basis of several citations as to the amplitude of power and practice of the Court i.e. re-examination and re-assessment of the evidence. The Jurists and Judges, possessed of the rich experience and long line of rulings in criminal cases tell us that there is hardly a case (criminal) which would be cent per-cent identical on all fours to the other. The background and causes for commission of offence may differ from case to case. That is why a ruling in one criminal case is carefully considered before citing it, as a precedent in its application to the other. It was observed in The State v. Mushtaq Ahmad PLD 1973 SC 418 that “everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case”. It may be regarded as having a persuasive value rather than a binding precedent. The rationale behind the dictum in Noora’s case (supra), appear to be that the entire evidence can be re-examined and evaluated by the Court to ensure safe dispensation of justice.

6. As each case may have its own peculiar back ground and circumstances giving rise to an incident or occurrence, that peculiarity may have to be kept in view by the Court while recording its findings and awarding the sentence. In the present case as is evident from the above, Munir Ahmad lost life, but his father Muhammad Hussain roped in fourteen persons including Yaqoob appellant. From the complainant side none had received any injury except the deceased despite alleged large scale indiscriminate firing. There was also background of enmity including previous long drawn litigation up to this Court. All others were acquitted except Muhammad Yaqoob appellant, who was alleged to have been armed with .222 rifle and recovery of the empties was also of the same weapon, however, the weapon recovered from him during the investigation was .7 m.m. rifle licensed. This to an extent weighed against the prosecution and a circumstance akin to the mitigating circumstance that prevailed in Khawand Bakhsh’s case (supra), wherein the Court altered with death sentence to that of life imprisonment. On consideration of the facts and circumstances, we find ourselves inclined and persuaded to alter the death sentence of the appellant to life imprisonment. The direction of the Trial Court to pay Rs.2,00,000 as compensation to the legal heirs of the deceased and in the absence, to be recovered from him as arrears of land revenue and in default thereof to undergo six months’ R.I. is maintained. However, the appellant will be entitled to the benefit of section 382-B, Cr.P.C.

7. In view of the above the appeal is partly allowed to the extent of modification of sentence.

N.H.Q./M-60/SC Sentence reduced.