PLJ 2009 Cr.C. (Lahore) 987 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik & Mazhar Hussain Minhas, JJ.
Crl. Appeal No. 232 of 2002 & M.R. No. 353 of 2002, heard on 19.1.2009.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 324--Sentence of death--Quantum of sentence--Mitigating circumstances--Deceased was sister's son of the convict--There was no back ground of previous enmity, ill will or malice between the parties--Before such happening relations between the appellant and his sister's sons were cordial and congenial--Admittedly, it was a sudden flare up--On arrival of the deceased and the injured PWs in the house of the appellant, they were greeted by him--After exchange of all greetings, the deceased, the injured PWs the complainant and the appellant sat on cots and started discussing money dispute--At spur of the moment the appellant got provoked in such a way that he picked up a gun and fired at his sister's sons, who had been greeted by him a little before--Available record did not show to our satisfaction the Court as to what transpired immediately before inception of the incident which forced or compelled or persuaded the appellant to fire at his sister's son against whom he had no ill will or malice. [P. 990] A & B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 71--An assailant causing different kinds of hurts to a person falling with in the ambit of different and separate penal provisions of law, however, during the course of same transaction cannot be convicted and sentenced for each and every hurt separately and simultaneously and will be liable for the major injury only--Sentence of death converted in to imprisonment for life. [P. 992] C
1969 P.Cr.L.J. 151 & PLD 1952 AJK 8, ref.
Raja Ikram Amin Minhas, Advocate for Appellant.
Ch. Muhammad Tariq, Addl. Prosecutor General for State.
Mr. Mukhtar Ahmad Gondal, Advocate for Complainant.
Date of hearing: 19.1.2009.
Kazim Ali Malik, J.--Muhammad Sarfraz (42) son of Rehmat Din, caste Awan, resident of village Mir Waal, Distt. Attock was challaned to the Court of Session, Attock in a case F.I.R. No. 42 of 2001 registered with Police Station Basal, Distt. Attock to stand trial on the charge of murder and attempted murder. On conclusion of trial before a learned Addl. Sessions Judge Attock, Muhammad Sarfraz was convicted and sentenced vide the impugned judgment dated 2.5.2002 as under:
(i) U/Section 302(b) P.P.C. for causing Qatl-e-Amd of Mumtaz Khan: To suffer death and also to pay Rs. 1,00,000/- to the legal heirs of the deceased as compensation u/S. 544-A Cr.P.C. and in case of default of payment thereof to undergo three years simple imprisonment.
(ii) U/Section 324 P.P.C. for attempting to commit Qatl-e-Amd of Muhammad Fayyaz PW: Five years RI with a fine of Rs 10,000/- and in case of default thereof to further undergo one year simple imprisonment.
(iii) U/Section 337-F(i) P.P.C. for causing Injuries No. 1 to 17 to Fayyaz P.W.: One year rigorous imprisonment and also to pay Rs.50,000/- as daman to Fayyaz P.W. and till payment of daman to remain in jail.
(iv) U/Section 337-F(ii) P.P.C. for causing Injuries No. 18 to 22 to Muhammad Fayyaz. P.W.: three years rigorous imprisonment and to pay an amount of Rs.10,000/- as daman to Fayyaz P.W. and to remain in jail till payment of daman.
(v) U/Section 324 P.P.C. for attempting to commit Qatl-e-Amd of Muhammad Riaz P.W.: To undergo five years rigorous imprisonment with a fine of Rs.10,000/- and one year simple imprisonment in case of default of payment thereof.
(vi) U/Section 337-F(ii) P.P.C. for causing injuries to Muhammad Riaz, P.W.: To suffer three years rigorous imprisonment and to pay Rs.20,000/- as daman to Riaz P.W. and till the payment of daman to remain in jail.
2. Muhammad Sarfraz, appellant called in-question the above said convictions and sentences through Crl. Appeal No. 232-J of 2002 whereas the Court of Session made Murder Reference No. 353 of 2002 for confirmation of death sentence. We propose to dispose of these two matters by this single judgment.
3. The occurrence took place at 4.15 p.m. on 6.5.2001 inside the house of Muhammad Sarfraz, appellant located in village Mirwaal, 18 kilometers away from Police Station Basal and was reported to the police the same day at 7.05 p.m. by Muhammad Sadiq, complainant. Three sister's sons of Muhammad Sarfraz, appellant; namely, Mumtaz Khan (deceased), Muhammad Fayyaz and Muhammad Riaz (P.Ws.) sustained fire-arm injuries at the hands of their real maternal uncle. Out of the three injured, Mumtaz Khan died at the spot while Muhammad Fayyaz and Muhammad Riaz, injured survived. At trial they both deposed against their maternal uncle Muhammad Sarfraz, appellant resulting in his impugned conviction and sentence.
3A. Prosecution case set up in the F.I.R., Ex.P.A., in brief, is that Muhammad Sarfraz, appellant established business of poultry form. His sister's son Muhammad Fayyaz (injured P.W.) invested Rs. 11,000/- in the business. Muhammad Sarfraz, neither made him a business partner nor returned the amount invested by him. On 6.5.2001 at 4.00 p.m. Mumtaz Khan, deceased alongwith his brothers Muhammad Fayyaz and Muhammad Riaz, P.Ws. reached the house of his father-in-law Muhammad Sadiq, complainant and sought his intervention for resolution of above said money dispute with Muhammad Sarfraz, appellant. Muhammad Sadiq, complainant accompanied the three brothers to the house of their maternal uncle Muhammad Sarfraz, appellant. Muhammad Sarfraz warmly received his sister's sons and Muhammad Sadiq, complainant. They all sat on cots in the Courtyard of the house. The complainant laid the above said money dispute before the appellant for its resolution when he flew into rage, rushed inside a room of his house, brought a .12 bore gun and fired two shots striking his sister's sons Mumtaz Khan. Muhammad Fayyaz and Muhammad Riaz. Mumtaz Khan died of his injuries at the spot.
4. On re-consideration, learned counsel for the appellant opted to accept his conviction on the charge of Qatl-e-Amd liable to Tazir and prayed for commutation of death sentence into imprisonment for life with the plea that mitigating circumstances available on the file either escaped notice of the learned trial Court or the same were not taken into consideration against the accepted and recognized legal principles governing the subject. The learned Law Officer opposed the request on the ground that the convict was rightly sentenced to death as he fired at his sister's sons.
5. We have carefully examined the record, particularly the prosecution case in order to determine the quantum of sentence. For the following reasons/mitigating circumstances, we are of the considered opinion that death sentence in this case is not warranted in law:-
(i) The deceased was sister's son of the convict. There was no background of previous enmity, illwill or malice between the parties. Before this happening relations between the appellant and his sister's sons were cordial and congenial.
(ii) Admittedly, it was a sudden flare up in which Mumtaz Khan suffered death at the hands of his real maternal uncle Muhammad Sarfraz, appellant. Our this conclusion is receiving support from the prosecution case itself, which is to the effect that on arrival of the deceased and the injured P.Ws. in the house of the appellant, they were greeted by him. After exchange of all greetings, the deceased, the injured P.Ws. the complainant and the appellant sat on cots and started discussing money dispute. At spur of the moment the appellant got provoked in such a way that he picked up a gun and fired at his sister's sons, who had been greeted by him a little before. The available record does not show to our satisfaction as to what transpired immediately before inception of the incident which forced or compelled or persuaded the appellant to fire at his sister's sons against whom he had no illwill or malice.
(iii) The occurrence took place inside the house of Muhammad Sarfraz, appellant. At the cost of repetition, we must bring on record that the appellant welcomed the deceased and the injured P.Ws. when they reached his house. In the circumstances, it cannot be said with certainty as to whether the deceased and the injured offered provocation and invited the trouble or the appellant chose to fire without provocation.
6. Keeping in view the above noted mitigating circumstances, we convert death sentence of the appellant into imprisonment for life with the benefit of Section 382-B Cr.P.C. However, the order with regard to compensation fixed by the trial Court needs no interference by this Court.
7. Muhammad Fayyaz P.W. sustained as many as 22 injuries on different parts of his body. His Injuries No. 1 to 17 fall within the ambit of Section 337-F(i) P.P.C. while Injuries No. 18 to 22 come within the purview of Section 337-F(ii) P.P.C. The learned trial Court convicted and sentenced the appellant under Section 337-F(i) and F(ii) P.P.C. separately for having caused the above said injuries to Muhammad Fayyaz, P.W. and thus violated the legal principle of merger of minor injuries into major one(s) as laid down in Section 71 P.P.C, A combined examination of the above said provision of law and its Illustration (a) would provide a basis to conclude that separate sentences for several injuries caused to a person in the same transaction cannot be recorded and imposed as the assailant in such a situation is liable for major injury only. For facility of reference Section 71 P.P.C. and Illustration (a) are reproduced below:
71. Limit of punishment of offence made up of several offences. Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or
Where several acts, of which one or more than one would by itself or themselves constitute an offence constitute, when combined, a different offence.
The offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
"(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating. "
Similar controversy arose and was resolved by the Courts in line with Illustration (a) to Section 71 P.P.C. In Jalal's case (Jalal Khan v. Government PLD 1952 AJK 8 it was held:
"The trial Magistrate and the learned Sessions Judge have held the accused to be guilty of three offences, viz; simple hurt, hurts by means of an instrument for cutting and grievous hurt by dangerous weapons. This is against the provisions of Section 71. A.P.C. Several injuries were caused to the girl during the course of the whole beating The accused cannot be held guilty of different offences for the various blows given by him. He is liable only to one punishment for the whole beating and could be punished only for an offence under Section 326 A.P.C. His conviction for offences under Sections 323 and 324 A.P.C being illegal is quashed."
In the case reported as Ghulam Hassan And Another v. The State (1969 P.Cr.L.J 151 (2), the accused was convicted and sentences under Sections 326 and 325 P.P.C. simultaneously for having caused simple and grievous hurts to the injured in the same transaction. The principle of merger of punishments and injuries was recognized with the remarks:
"The conviction of the appellants under Section 325/34 P.P.C. cannot be upheld as it is contrary to the provisions of Section 71 P.P.C. I accordingly set aside their conviction and sentence under Section 325/34 P.P.C"
A combined examination of Section 71 P.P.C. and its illustration (a) and the case law, referred to above provides a basis to conclude that an assailant causing different kinds of hurts to a person falling within the ambit of different and separate penal provisions of law, however, during the course of same transaction cannot be convicted and sentenced for each and every hurt separately and simultaneously and will be liable for the major injury only. We, therefore, hold that the appellant is liable to only one punishment under Section 337-F(ii) P.P.C. for the whole beating. Resultantly, the conviction and sentence under Section 337-F(i) P.P.C. imposed on the appellant by the learned trial Court is set aside being violative of Section 71 P.P.C. and the case law discussed above.
8. With the above modification in the impugned convictions and sentences of the appellant, Crl. Appeal No. 232-J of 2002 is dismissed. Murder Reference No. 353 of 2002 is answered in the negative.
9. Death sentence imposed on Muhammad Sarfraz appellant by the learned trial Court, is not confirmed.
(M.S.A.) Order accordingly.