2012 P Cr. L J 33
[Balochistan]
Before Muhammad Noor Meskanza i and Naeem Akhtar Afghan, JJ
MICHAEL NAZIR and others ---Appellants
Versus
THE STATE and others ---Respondents
Criminal Appeals Nos. 86 and 89 of 2006, decided on 15th September, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 324 ---Anti-Terro rism Act (XXVII of 1997), Ss.6 & 7 ---Qatl-e-amd,
attempt to commit qatl -e-amd and terrorism ---Appreciation of evidence ---Prosecution
version, seemed to be absolutely true for genuine and valid reasons ---Prosecution
evidence was consistent, straightforward confidence -inspiring, corroborative to each other
and flawless ---No ambiguity or doubt was noticed in the prosecution case qua the
commission of offence by accused ---Medical evidence, recovery of firearm from the
possession of accused, positive report of B allistic Expert, corroborated the ocular
account ---Accused claimed that he had been booked in the case not because he had
committed any offence, but because he had embraced Islam ---Stand taken by the defence
was not acceptable for the reasons that prosecut ion evidence had proved the fact that
accused had fired upon deceased and injured prosecution witnesses; that as a consequence
of the firing made by accused, two persons sustained bullet injuries and died
instantaneously, whereas two prosecution witnesses sustained bullet injuries; that motive
as set up by the defence, was neither plausible nor probable; that despite weakness of
motive, defence had failed to prove the motive so agitated ---Stance of defence, in view of
overwhelming evidence, baseless, prepos terous and nothing more than a cobweb ---
Accused, in the light of material on record had committed the preplanned, wilful,
intentional and cold -blooded murder of two innocent, harmless and helpless persons,
beside causing the firearm injuries to two prosecu tion witnesses ---Appeal filed by
accused was dismissed, in circumstances.
Zahid Imran and others v. The State PLD 2006 SC 109 rel.
(b) Words and phrases ---
----'Intention' ---Meaning of.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 324 ---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7 ---Qatl-e-amd,
attempt to commit qatl -e-amd and terrorism ---Sentence, enhancement of ---Intention ---
Scope ---Trial Court had proposed lesser punishment on the ground of lack of mens rea ---
Criminal intention must exist to constitutie a crime ---"Intention" did not imply or assume
the existence of some previous design or forethought but could be proved by or inferred
from the act of accused and circumstances of the case ---Continuous firing by accused
who was an educated p erson and fully aware of the consequences of his act, was
reflective of his intention ---Unprovoked act of firing by accused on the vital part of
deceased persons, led to irresistible conclusion that accused intended to cause the death of
the victims ---Evid ence produced by the prosecution was straightforward, confidence -
inspiring, cogent, consistent, unimpeachable, unshaken and had brought home the charge
against accused to the hilt ---Evidence did not suffer from any infirmity ---In such state of
affairs it w as beyond imagination to conclude that no 'mens rea' or intention was on the
part of accused ---Conclusion of the Trial Court regarding non -availability of " mens rea "
or lack of intention to commit the murder of deceased persons having no basis and
foundati on, was rejected in circumstances ---No reasons existed which could justify a
sympathetic, a lenient or concessional treatment for accused ---In absence of any
mitigating and extenuating circumstances justifying the imposition of lesser punishment,
sentence of life imprisonment awarded to accused was converted to that of death
sentence.
Zahid Imran and others v. The State PLD 2006 SC 109; Manzoor Ahmed v. The
State 1999 SCMR 132; Muhammad Tahir Aziz v. The State 2010 PCr.LJ 1787; Nabi
Bakhsh v. The State a nd another 1999 SCMR 1972; 1998 SCMR 862; PLD 1976 SC 452;
Muhammad Aslam v. The State PLD 2006 SC 465 and PLD 2006 SC 354 rel.
Mrs. Shabana Azeem for pauper Appellant (in Criminal Appeal No. 86 of 2006).
Abdul Sattar Durrani Additional Prosecutor -Genera l for Respondent (in Criminal
Appeal No. 86 of 2006).
Abdul Sattar Durrani, Additional P. -G. for Appellants (in Criminal Appeal No. 89
of 2006).
Mrs. Shabani Azeem for Respondents (in Criminal Appeal No. 89 of 2006).
Date of hearing: 8th August, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .---By means of this common judgment,
we propose to decide Criminal Appeals Nos.86 and 89 of 2006. The former appeal has
been filed by convict/appellant against the judgment dated 29 -4-2006 whereby the
appellant was c onvicted and sentenced as under: --
(i) Under section 7(a) of ATA, 1997 read with section 302(b), P.P.C. to suffer R.I. for
life imprisonment with fine of Rs.50,000 to be paid as compensation to the legal
heirs of deceased persons in equal shares. In case o f default to further suffer S.I.
for one year.
(ii) Under section 6(2)(b) of the ATA, 1997 and sentenced under section 7(c) of ATA,
1997 read with section 324, P.P.C. to suffer R.I. for fourteen years with fine of Rs.
20,000 to be paid to the injured perso ns Saleem Roza Masili and Yousaf Masih. In
case of default to further suffer S.I. for three months.
Both the sentences were directed to run concurrently.
Benefit of section 382 -B, Cr.P.C. was extended in favour of appellant.
Criminal Appeal No. 89 of 20 06 has been filed by the State through Public
Prosecutor (ATA) seeking enhancement in respect of murder of deceased Noor
Muhammad Achakzai and Iqbal Masih alias Balay and to award capital punishment of
death to the respondent.
2. Facts relevant for disp osal of instant appeals are that on 2 -3-2004
complainant Javed Masih lodged F.I.R. No. 39 of 2004 with Police Station Sariab, Quetta
under section 302/324, P.P.C. It was alleged therein that he is member of Seven Day
Church. On the fateful day at 5 -30 p.m. he reached in the Church. In the courtyard of the
church, Padri Javed son of Nawab Masih, Padri Maqbool Inayat son of Inayat Masih,
Zulfiqar Rehman son of Rehmat Masih, Councillor Inno son of Danayal Masih, their
legal advisor Noor Muhammad Achakza i Advocate, member committee Iqbal Masih and
Education Director Saleem Raza Masih were present, whereas Church member Yousaf
Masih and Gulzar son of Mirza Masih were already present there. According to
complainant some days prior to the incident as the Chu rch Committee had terminated
Padri Michael Nazir from Padriship and principalship of school, therefore, Legal advisor
Noor Muhammad Achakzai, Iqbal Masih, Saleem Raza and Yousaf Masih went to ask the
accused to vacate the house of Church. At about 5 -50 p.m . they knocked the door and
accused who came out having a white colour TT Pistol in his hand, made firing upon
them, due to which Noor Muhammad Achakzai and Iqbal Masih succumbed to their
injuries at the spot whereas Yousaf Masih and Saleem Raza Masih sust ained injuries.
3. After registration of above F.I.R. investigation was entrusted to Ghulam Yaseen
ASI who on receiving information about the incident rushed to Civil Hospital. In Hospital
he prepared inquest reports of deceased Noor Muhammad Achakzai (Exh .P/7-B) and
Iqbal Masih (Exh.P/7 -C). He also prepared injury reports of injured persons. He recorded
statements of witnesses, injured persons/eye -witnesses. He took into possession blood -
stained articles of injured persons. Thereafter the I.O. visited the site. Appellant was
arrested from his house. A T.T Pistol, two Magazines and three live cartridges were taken
into possession through recovery memo from the possession of appellant. The Police also
recovered a license of pistol from the pocket of trouser o f accused. The site was inspected
during course of investigation whereof four empties of T.T. Pistol and blood -stained soil
were taken into possession. The I.O. prepared map Exh.P/7 -D. He sent blood -stained
articles and T.T Pistol for chemical analysis. On 17 -3-2004 appellant was committed
to judicial custody. After completion of investigation interim challan Exh.P/7 -E was
prepared. On receipt of F.S.L report Exh.P/7 -G regarding Pistol blood -stained soil and
clothes complete challan Exh.P/7 -H was prepared.
4. Charge was framed on 29 -1-2005 to which the appellant pleaded not guilty and
claimed justice through trial. The prosecution in order to substantiate the accusation
produced following witnesses: --
(i) P.W.1 Javed Masih (complainant).
(ii) P.W.2 Saleem Raza (eye -witness/injured).
(iii) P.W.3 Yousaf Masih (eye -witness/injured).
(iv) P.W.4 Dr. Farid Ahmed.
(v) P.W.5 Inno Masih (eye -witness).
(vi) P.W.6 Saif Ullah (alleged eye -witness).
(vii) P.W.7 Ghulam Yasin (I.O.).
Thereafter the appellant was examined under section 342, Cr.P.C, wherein he
denied the incriminating pieces of evidence. The appellant besides examining himself
on oath as envisaged under section 340(2), Cr.P.C, also produced two witnesses in his
defence.
5. The learned t rial Court after evaluating the evidence and appreciating the
arguments of the parties, found the appellant guilty, as such; convicted and sentenced him
as mentioned hereinabove.
6. We have heard Mrs. Shabana Azeem Advocate for appellant in Criminal Appeal
No. 86 of 2006 and respondent in Criminal Appeal No.89 of 2006; whereas the State was
represented by Mr. Abdul Sattar Durrani Additional P. -G.
Learned counsel for the appellant in (Criminal Appeal No.86 of 2006) argued that
appellant has been made a scap egoat whereas actually the appellant has committed no
offence of whatsoever nature. Learned counsel stressed that the prosecution witnesses are
interested and they want to implicate the appellant in the case as he had embraced Islam.
She next argued that t here are material contradictions in the statements of prosecution
witnesses and the same do not inspire confidence. There is no independent material
available with the prosecution to connect' the appellant with the alleged commission of
crime.
Learned Add itional P. -G. vehemently opposed the contention so advanced. It was
urged with vehemence that prosecution has established the guilt to the hilt by producing
confidence -inspiring evidence. It was submitted that prosecution evidence is independent,
consisten t and confidence -inspiring. There is no motive or ill -will of whatsoever nature,
therefore, question of false implication does not arise at all.
7. In Criminal Appeal No. 89 of 2006 learned Additional P. -G. argued that the trial
Court for unjustifiable rea son overlooked the grave nature of the case. The appellant
under a pre -planed program committed murder of two innocent persons and caused
gunshot injuries to two other prosecution witnesses. In view of given circumstances, the
trial Court committed an ille gality by holding that the appellant was having no intention
to commit murder. The recovery of crime weapon, positive report of Expert, medical
evidence and the ocular account has established the fact that the respondent committed
the cold -blooded murder o f two innocent persons, besides causing gunshot injuries to two
other persons, hence he deserved the normal penalty of death.
8. Learned counsel for respondent/convict seriously opposed the appeal and stated
without prejudice to arguments forwarded in Crim inal Appeal No 86 of 2006 the trial
Court in peculiar facts and circumstances of the case rightly concluded that there was no
case of intentional murder. Counsel for respondent/convict submitted that in any case if
appeal filed by appellant is not found to be weighty then the conviction so recorded may
be deemed appropriate. She stressed that prosecution has failed to make out a case for
capital punishment, therefore, the appeal filed by the State may be dismissed.
Mr. Muhammad Qahir Shah learned counsel a ppearing on behalf of legal heirs of
deceased Mr. Noor Muhammad Achakzai Advocate also argued the matter and supported
Criminal Appeal No.89 of 2006 for enhancement of sentence and to award death penalty
to appellant.
9. We have considered the contentions advanced by the learned counsel for parties
and with their able assistance have gone through the record of the case minutely. Before
dilating upon merits of the case and contentions of the learned counsel we deem it just
and expedient to reproduce the gist of evidence produced by parties.
P.W.1 Javed Masih deposed that as on 2 -3-2004 there was a meeting of Board of
Seven Day School, therefore, he reached Seven Day School at 5 -00 p.m. Before his
reaching Padri Maqbool, Padri Javed, Legal Advisor Noor Muhamm ad Achakzai,
Councillor Zulfiqar, Inno Masih, Saleem Raza, Gulzar Masih, Yousaf Masih and Iqbal
Masih were present. Meeting commenced, meanwhile their legal Advisor Noor
Muhammad Achakzai Advocate, Iqbal Masih, Yousaf Masih, Saleem Raza, went to the
house of Padri Michal Nazeer for asking him to vacate the house. Prior to the incident
accused was Padri and Principal of School but was terminated by the Board. As soon as
the above said persons reached the house of accused and knocked the door, accused came
out of house having a white colour T.T Pistol in his hand and started firing upon them. As
a result of firing Noor Muhammad Achakzai and Iqbal Masih died instantaneously
whereas Yousaf Masih and Saleem Raza sustained injury.
P.W.2 Saleem Raza deposed that t he accused present in the Court was Clergyman
and Principal of Seven Day Church. The accused, on account of some complaints of
Seven Day School, was terminated from School by the concerned authorities. On his post
Javed Masih was appointed as Clergyman and Principal. The accused refused to hand
over the charge to said Javed Masih and obtained stay order from the Court. However the
stay order was vacated. On 2nd March, 2004, we convened board meeting of Seven Day
Church School in Church premises. In the said meeting Councillor Zulfiqar Clergyman,
Maqbool Inayat Clergyman, Javed Masih and another one Javed, Legal Advisor Noor
Muhammad Achakzai, Yousaf Iqbal and I were present. The said meeting commenced at
5-00 p.m., and continued for twenty minutes. It was de cided in the meeting that they
would ask the accused that when he would vacate the house. Upon which, I along with
Noor Muhammad Achakzai and Iqbal went to the house of accused Yousaf and knocked
at the door and remained standing outside. In the meanwhile accused abruptly came out of
the house, having a white colour T.T pistol in his right hand. The accused on coming out
started indiscriminate firing upon them, owing to which a bullet hit on his left leg and he
became injured. Besides him Yousaf also became injured. Whereas later on in the said
firing Iqbal alias Bala and Noor Muhammad Achakzai died. The witness identified the
accused present in the Court.
P.W.3 Yousaf Masih deposed that he is member of Seven Day Church School. It is
the incident of 2nd Mar ch, 2004, the members of Church i.e. Maqbool Padri, Javed,
Zulfiqar, Inno, Iqbal, Gulzar Saleem Raza, Javed Masih and Noor Muhammad Achakzai
are the members of Church Committee. A meeting was convened to discuss the issue of
Michel Nazeer. The Padries of S even Church had terminated Michel Nazeer from the post
of Principal and Padri. After meeting, he along with Noor Muhammad Achakzai, Iqbal
and Saleem Raza went to the house of accused Nazeer. No sooner accused came out of
the house, he had pistol in his rig ht hand. He started firing upon them. He received bullet
injury on his left shoulder and he became injured and fell down. Thereafter he came to
know that due to firing Noor Muhammad Achakzai and Iqbal alias Bala have been
murdered and Saleem Raza was also injured.
P.W.4 Dr. Farid Ahmed, Assistant Medical Superintendent, BMC Hospital, Quetta
deposed that on 2nd March, 2004 he was posted as Medico -legal officer in Causality
Department of BMC Hospital, Quetta. On the same day at 6 -00 p.m., dead body of one
Iqbal alias Bala Masih was brought by one Joseph. He examined the dead body and found
a circular wound on the left lumber abdomen. He issued medical certificate Exh.P/4 -A.
On the same day at 6 -05 p.m., he examined injured Yousaf Masih and found an entrance
circular wound on left side of his shoulder. In this regard he issued certificate Exh.P/4 -B.
On the same day at 6 -10 p.m., he examined the dead body of one Noor
Muhammad Achakzai. He examined the dead body and observed a circular entrance
wound on the mid of his chest as well as an exit wound on the back of the chest. He
issued certificate Exh.P/4 -C.
Thereafter he examined the injured Saleem Raza. On examination he found a
circular wound on the anterior aspect of the left thigh. He issued certificate Exh.P /4-D.
P.W.5 Inno Masih deposed that long ago the accused was terminated from
Padriship and Principalship of Seven Day School on the complaint of general public. The
Organization had appointed a new principal but the accused was not ready to hand over
the charge to the newly -appointed principal. On 2nd March, 2004, a meeting was
convened, wherein he along with Javed Masih, Padri Javed Masih, Pardi Maqbool Masih,
Saleem Raza, Zulfiqar, Rehmat, Gulzar Masih participated. After meeting Noor
Muhammad Achakzai, Iqbal alias Bala Saleem Raza and Yousaf Masih went to the house
of accused and knocked the door. He was asked to vacate the house of Church. On this
the accused made firing upon all the four persons. Resultantly Iqbal alias Bala and Noor
Muhammad Achakzai died instantaneously, whereas Saleem Raza and Yousaf Masih
sustained injuries, who were taken to Hospital. Police reached to Hospital, where Ghulam
Yaseen, ASI took into possession shirt and white waistcoat containing bullet mark vide
'Fard' Exh.P/5 -A. The police also took into possession black trouser of Saleem Raza vide
memo Exh.P/5 - B. They also took into possession shirt and shalwar of Yousaf Masih vide
Fard Exh.P/5 -C. He produced blood -stained shirt Art.P/6, Shalwar Art.P/7. Thereafter the
police visit ed the spot and arrested the accused from his house. The police recovered
hamail churmi tied around waist of accused containing a white colour T.T pistol along
with two magazines. The police also took into possession license of pistol and three live
cartri dges vide recovery memo Exh.P/5 -D. Thereafter on their pointation the police took
into possession blood -stained soil vide memos Exh.P/5 -E and Exh.P/5 -F. From the spot
four empty cartridges were also recovered which were taken into possession vide Fard
Exh. P/5-G.
P.W.6 Saifullah Achakzai deposed that on 2nd March, 2004 he along with his
father went to Seven Day Church. His father in connection with meeting went inside the
Church while he remained outside. After 20 minutes he heard fire shot reports.
Whereup on he went inside the Church and saw accused Michel Nazeer holding a white
colour T.T pistol and firing. Due to firing, he saw his father and three other persons lying
on the ground. The persons available there took his father and other persons to Hospital .
He also rushed to Hospital where he came to know that his father has been martyred.
Police also reached to Hospital. They took into possession blood -stained white colour
clothes and waistcoat of his father. He produced recovery memo Exh.P/6 -A. He also
produced application Exh.P/6 -B regarding non -conducting of postmortem of his father.
He produced receipt regarding corpse of his father as Exh.P/6 -C.
P.W.7 Ghulam Yaseen deposed that on 2nd March, 2004 he was posted as A.S. -I.
at Police Station Sariab. On t he same evening he received information about the incident,
as such he along with S.H.O. and other personnel went to Bolan Medical Complex. The
S.H.O. recorded Fard -e-Bayan of Javed Masih and sent the same to Police Station for
registration of case. After registration of F.I.R. investigation was entrusted to him. In
Hospital he prepared inquest reports of deceased Noor Muhammad Achakzai (Exh.P/7 -B)
and Iqbal Masih (Exh.P/7 -C). He also prepared injury reports of injured persons. He
recorded statements of wit nesses, injured persons/eye -witnesses. He took into possession
blood -stained clothes of injured persons. Thereafter he visited the site. Appellant was
arrested from his house along with T.T Pistol, two Magazines and three live cartridges
which were taken i nto possession through recovery memo. The Police also recovered a
License of pistol from the pocket of trouser of accused. The site was inspected during
course of investigation whereof four empties of T.T. Pistol and blood -stained soil were
taken into poss ession. He prepared map Exh.P/7 -D. He sent blood -stained clothes and T.T
Pistol for chemical analysis. On 17 -3-2004 appellant was committed to judicial custody.
After completion of investigation interim challan Exh.P/7 -E was prepared. On receipt of
F.S.L r eport Exh.P/7 -G regarding Pistol, bloodstained soil and clothes complete challan
Exh.P/7 -H was prepared.
10. We have considered the respective arguments and have gone through the record of
the case minutely. The prosecution version seems to be absolutely t ruthful for genuine
and valid reasons. The prosecution evidence is consistent, straightforward, confidence -
inspiring, corroborative to each other and flawless. There is no doubt or ambiguity in the
prosecution case qua the commission of offence by the appe llant. Medical evidence,
recovery of firearm from the possession of appellant, positive report of Ballistic Expert
corroborate the ocular account of P.W.2 Saleem Raza and P.W.3 Yousaf Masih (both
injured witnesses). P.W.6 Saifullah Achakzai son of Noor Muh ammad Achakzai though a
chance witness yet his presence at the site has been established, as he had accompanied
his father, further strengthens the prosecution case. The trend of cross -examination and
the worth of statement recorded by the appellant under section 340(2), Cr.P.C. is
suggestive of the fact that the appellant claims to have been booked in this case not
because he has committed any offence but because he has embraced Islam. The stand
taken by the defence is not acceptable for a variety of reaso ns. Firstly, the prosecution
evidence has proved the fact that appellant made firing upon the deceased and the injured
prosecution witnesses. Secondly, it has been proved on record beyond slightest doubt that
consequent upon the firing made by the appellan t, two persons sustained bullet injuries
and died instantaneously, whereas two prosecution witnesses sustained bullet injuries.
Thirdly, the motive as set up by the defence is neither plausible nor probable and
acceptable. Fourthly, despite weakness of mot ive defence has miserably failed to prove
the motive so agitated. May be, on account of embracing Islam, the appellant has been
relieved from the office of 'Padriship'. One may concede that appellant might have been
terminated from the office of 'Principal ship' on account of his conversion to Islam but it is
not conceivable that the murder of two persons is being planted upon the appellant merely
because he has embraced Islam. It was the earlier termination of the appellant from the
office of Padriship and principalship of school and subsequent proposed eviction from the
house which made the appellant hostile and motivated him to go to such an extent. In
view of overwhelming evidence the stance of defence is absurd, baseless, preposterous
and nothing more th en a cobweb.
11. In the light of above discussion and material available on record it is safely
concluded that appellant has committed the pre -planned, wilful, intentional and cold -
blooded murder of two innocent, harmless and helpless persons, besides caus ing the
firearm injuries to two prosecution witnesses. Therefore, Criminal Appeal No.86 of 2006
by convict appellant Michel Nazir is hereby dismissed.
12. Now adverting to Criminal Appeal No.89 of 2006 filed by State, calling in
question the legality of qu antum of sentence. No doubt after finding the accused guilty of
the offence, the paramount and important question that requires the utmost care and
attention by the court dealing with the life and liberty of the people is the sentence sought
to be awarded. By holding the view we are fortified by the dictum laid down by the Apex
Court in case "Zahid Imran and others v. The State" reported in PLD 2006 SC 109
(relevant at page No.129) reads as under: --
"The learned Division Bench of Lahore High Court has err ed while converting
section 302, P.P.C. with that of section 316, P.P.C. by ignoring the evidence which
has come on record. It is well -entrenched principle of criminal administration of
justice that "the question of sentence demands the utmost care on the part of the
Courts dealing with the life and liberties of the people."
The trial Court has proposed the lesser punishment on the ground that appellant
was having no intention to commit murder. The relevant findings of the trial court reads
as under: --
"By careful examination of statements of prosecution witnesses, nothing appeared
that the accused intentionally made firing upon them, which resulted into the
aforesaid incident, meaning thereby that the "Mens Rea" is missing in the instant
case in evidence of the prosecution."
13. As far as the meaning of intention is concerned, "by intention", is meant the
expectation of the consequence in question. We have not been persuaded to endorse the
view and logic of trial court for the proposal of lesser punishment on the ground of lack
of mens rea. There is no cavil to the legal proposition that to constitute a crime, criminal
intention must exist while committing the crime. Intention does not imply or assume the
existence of some previous design or fore -thought. I ntention can be proved by, or inferred
from the act of accused and circumstances of the case. The continuous firing by the
appellant who is an educated person and fully aware of the consequences of his act is
reflective of his intention, because a person i ntents the natural consequences of his act.
The unprovoked act of firing by the appellant on the vital part of deceased persons leads
us to irresistible conclusion that appellant did intend to cause the death of the victims.
The evidence produced by the p rosecution is straightforward, confidence -
inspiring, cogent, consistent, unimpeachable, unshaken and has brought home the charge
against the convict to the hilt. The evidence does not suffer from any infirmity. In the
light of such overwhelming evidence, i t is not difficult to gather the intention that convict
intended to commit the crime in question. In such state of affairs it is beyond imagination
to conclude that there is no 'mens rea' or intention on the part of convict. So conclusion of
trial court re garding non -availability of 'mens rea' or lack of intention to commit the
murder of deceased persons having no basis, substance and foundation, therefore is
rejected. In this regard reliance can be placed in the case of "Zahid Imran and others v.
The State" reported in PLD 2006 SC 109, wherein it has been held that: --
"The well -entrenched principle of criminal administration of justice "that to
constitute a crime the act must be accompanied by a criminal intent or by such
negligence or in differ ence of duty or to consequences as is regarded by the law as
equivalent to criminal intent. We are conscious of the fact that intention is not
capable of positive proof and it can only be implied from overt act and no hard and
fast rules can be formulated to know the intention which must always be gathered
from the circumstances of the case, and the matter which is primarily to be
considered is the consequences which flow from an act because a man is usually
presumed to intend the consequences of his own ac t," has been ignored. (Mewa
Khan v. The State PLD 1995 Quetta 108).
24. We may point out that "by intention" is meant the expectation of the
consequence in question. 'It was a universal principle, that when a man is charged
with doing an act, of which the probable consequence may be highly injurious, the
intention is an inference of law resulting from the doing of the act.' Intention does
not imply or assume the existence of some previous design or fore -thought. It
means an actual intention, the existing i ntention of the moment, and is proved by,
or inferred from, the acts of the accused and the circumstances of the case"
14. We have given our serious thoughts to the quantum of sentence. We have gone
through the record minutely in order to ascertain as to w hether any circumstance does
exist on record to justify the departure from the normal rule i.e. the awarding of death
sentence to the person who is found guilty of an offence punishable with death. We have
not been able to persuade ourselves to subscribe t he view of trial Court qua the quantum
of sentence that was proposed. As already discussed that the act of appellant was wilful,
intentional, deliberate, pre -planned and premeditated, as such the trial Court committed
an illegality in proposing the lesser punishment. By holding the view we are fortified by
the dictum laid down in the case of 'Manzoor Ahmed v. The. State' reported in 1999
SCMR 132, wherein it has been held that: --
"The prosecution has been able to prove that the murder committed by the
appe llant, was in most cruel and brutal manner as a defenceless and an unarmed
person was given numerous injuries on vital parts of his body when he was lying
down in a helpless state. On the other hand the appellant has not been able to
prove any mitigating c ircumstance to justify lesser penalty. Even otherwise
keeping in view seven incised wounds on the person of the deceased almost all on
very vital parts of his body would suggest that the appellant dealt with the
deceased very brutally and callously on a ve ry petty grievance. It is settled law "to
punish the offender in proportion to the character and extent of his guilt, to be
deterrent for him and for the rest of the society without being unnecessarily harsh
or needlessly indulgent."
In view of all these facts the High Court was legally correct in converting the
sentence of life imprisonment into death which is normal penalty for the type of
murder perpetrated by the appellant. The appeal is found without merits and is,
accordingly, dismissed."
In the cas e of 'Muhammad Tahir Aziz v. The State' reported in 2010 PCr.LJ 1787
observed as under: --
"It is well -settled principle of law that where a case under section 302, P.P.C. is
proved against the accused beyond reasonable doubt, then the normal penalty of
death is required and in such case leniency should not be shown, except where
strong mitigating circumstances for lesser sentence are available. Where the
prosecution has established the guilt of accused under section 302 through
satisfactory and reliable ev idence, then the penalty of death has to be awarded.
The basic object of punishment in civilized society is to create deterrence among
the citizens so that no one should dare to commit the slay of any person. The
sentence of death shall create a deterrence in the society due to which no other
person shall dare to commit the offence of murder. If in any proved case lenient
view is taken then peace, tranquillity and harmony of society will be jeopardized
and vandalism shall prevail in the society."
Further w e are supported by the dictum laid down in case title 'Nabi, Bakhsh v.
The State and another' reported in 1999 SCMR 1972, wherein it has been held that: --
"15. Lastly, adverting to contention regarding quantum of sentence, needless to
say that once prosec ution accusations regarding involvement of convict for
causing murder are duly established then in the absence of justifiable extenuating
circumstances normal punishment required to be awarded is "Death". Reference in
this behalf can be made to following o bservations in cases (i) Adur Rashid v.
Umid Ali (PLD 1975 SC 227), (ii) Mst. Bismillah v. Muhammad Jabbar (1998
SCMR 862) and (iii) Pervaiz v. The State (1998 SCMR 1976): ---"
Reliance can also be placed on the judgments reported in 1998 SCMR 862 and
PLD 1976 Supreme Court 452 .
The purpose of sentence is prevention of crime and to discourage the others to
commit crime. Leniency in the matter of sentence in serious offences is against the object
and wisdom of law. By holding the view, we are supported by t he judgment of Hon'ble
Supreme Court in case of ' Muhammad Aslam v. The State reported in PLD 2006 SC 465,
relevant observations read as under: --
"We may point out that the purpose of sentence is prevention of crime and to
discourage the others to turn to crime. It is generally agreed that leniency in the
matter of sentence in serious offences is against the object and wisdom of law
whereas the rationale behind the deterrent punishment is to eliminate the crime or
at least to reduce and discourage the crime in the interest of peaceful atmosphere
in the Society. The ultimate purpose of deterrence or the lenient view in the matter
of sentence directly or indirectly is the reformation of an individual as well as the
Society. The concept of lenient view in the p unishment is to bring down an
offender to reform himself and restrain from repeating the crime whereas the goal
of deterrence in the sentence is reduction in crime in the Society due to fear
of law."
While awarding the sentence the court is req uired to be very cautious because
justice is not for one but is for all and while examining the case of convict, Court owe a
duty to the legal heirs/relatives of the convict and also to the society that justice should
also be done with them as well. Reli ance is placed on PLD 2006 SC 354, it has
been observed as under: --
"It is also to be noted that justice is not for one but is for all and while examining
the case of convict, the Court owe a duty to the legal heirs/relatives of the convict
and also to the society that justice should also be done with them as well, thus the
sentence should be such which should serve as deterrent for the like minded
person as observed in the case of Muhammad Saleem v. The State PLD 2002
SC 558, State v. F arhan Ali PLD 1995 SC 1."
15. Hence the findings of trial court regarding formulated point No.2 qua the quantum
of sentence are baseless, fanciful, unjustified and unwarranted rather appear to be a
mockery with law, as such to such extent are set aside. We are satisfied that appellant has
committed cold -blooded murder of the two innocent, armless and harmless persons who
visited the house of appellant in order to solve a community problem along with other
injured witnesses. Having thus looked at all possibl e aspect of the matter, we hold that no
reasons exist which could justify a sympathetic, a lenient or concessional treatment for
Michael Nazir appellant/convict.
16. In view of what has been discussed hereinabove, it is safely concluded that the
motive as set up by the defence for the false implication of appellant is not rational
neither conceivable nor acceptable but a cock -and-bull story, therefore, we are of the
clear opinion that the appellant by intentional commission of a barbaric, brutal, execrable
act has deprived himself from any leniency. There is no mitigating and extenuating
circumstance justifying the imposition of lesser punishment. Consequently, Criminal
Appeal No.89 of 2006 filed by State through Public Prosecutor (ATA), is allowed. The
sentence of life imprisonment awarded to 'Michael Nazir convict under section 7(a) of the
Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. for the murder of Mr. Noor
Muhammad Achakzai and Iqbal Masih is modified and life imprisonment is converted to
that of death sentence. Appellant Michael Nazeer son of Abdullah be hanged by the neck
till his death.
With the above modification in the quantum of sentence, Criminal Appeal No.86
of 2006 filed by convict is dismissed and Criminal No. 89 of 2006 filed by State is
allowed.
H.B.T./119/Q Sentence enhanced.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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