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Official Citation: 2024 YLR 2393
Court / Jurisdiction: Supreme Court of Azad Jammu and Kashmir
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Shahzad Ahmed Shah vs The state through Advocate-General, Azad JUDGMENT
Ruling Summary: This decision was rendered by the Supreme Court of Azad Jammu and Kashmir on 2023-12-31, officially reported as 2024 YLR 2393. In this matter between Shahzad Ahmed Shah and The state through Advocate-General, Azad JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 2393
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raza Ali Khan, Khawaja Muhammad Nasim Title:Shahzad Ahmed Shah vs The state through Advocate-General, Azad
JUDGMENT
Reported As: 2024 YLR 2393 Result: Appeal allowed Judgment
JUDGMENT RAZA ALI KHAN, J. The captioned appeal arises from the judgment of the Shariat Appellate Bench of the High Court (High Court), rendered on January 9, 2023, in Criminal Appeal No. 141 of 2014 and Criminal Reference No. 114 of 2017. 2. The detailed facts involved in the captioned appeal are that on July 28, 2011, the complainant, Manzoor Ahmed Shah, lodged a written report with the SHO of Police Station Lawat, District Neelum. In the report, he alleged that on the morning of July 28, 2011, at approximately 5:20 am, while he was at home, he heard the gunfire coming from the house of his brother, Farooq Shah, in Lawat Kundian. Promptly, he, along with his son Masood Shah, rushed toward his brother's house. On the way, they were joined by one Abdul Hameed. They observed Shehzad Ahmed, son of Babu Walayat Shah, armed with a .12-bore rifle fleeing the scene with an unknown accomplice, heading south through the maize fields adjacent to his brother's house. Upon reaching his brother's house, the complainant found Farooq Shah lying in a pool of blood. Upon inquiry, Farooq Shah's wife, Mst. Razia Bibi, recounted that earlier that morning, three stones had been pelted consecutively at their house. Responding to the disturbance, Farooq Shah went to the veranda, followed by her, who stood at the door. She witnessed Shehzad Ahmed standing in the maize field in front of their house, armed with a 12-bore rifle. Shehzad Ahmed fired at Farooq Shah, striking him in the chest and right shoulder, resulting into his immediate death. The motive for the murder was reportedly a dispute over a piece of land. Fifteen days prior to the incident, Farooq Shah and his father had acknowledged an altercation with Shehzad Ahmed's mother regarding this piece of land.
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Harboring a grudge from this conflict, Shehzad Ahmed, with the alleged abetment of his accomplices, committed the murder of Farooq Shah. 3. Based on the complainant's report, FIR No. 14/2011 way registered at Police Station Lawat in the offenses under Sections 302 and 109 of the Azad Kashmir Penal Code (APC). The convict-appellant was subsequently arrested and investigated. During the investigation, the other individuals nominated in the FIR for abetment, were exonerated at the complainant's request. Upon completion of the investigation, a challan under Sections 173 of the Code of Criminal Procedure (Cr.P.C) in the offence under Section 302, APC and Section 13 of the Arms Act was presented in the Court of competent jurisdiction on October 21, 2011. Legal proceedings commenced and the convict-appellant was examined under Section 265-D, Cr.P.C. He denied the allegations and claimed trial, prompting the prosecution to present evidence in support of its case. Out of the 25 witnesses listed in the calendar of witnesses in the challan report, the prosecution got recorded the testimonies of 24 witnesses. Following the presentation of the prosecution's evidence, the statement of the convict-appellant was recorded under Section 342, Cr.P.C, wherein he again pleaded not guilty. He opted not to produce any defense evidence or record his statement on oath. 4. At the conclusion of the trial, the learned trial Court convicted the appellant and imposed the death penalty as `Tazir under Section 302(b), APC. Additionally, the convict-appellant was ordered to pay Rs. 200,000 as compensation to the legal heirs of the deceased, Farooq Shah, pursuant to Section 544-A, Cr.P.C. The Court also sentenced the convict-appellant to three years' simple imprisonment for the offense under Section 13 AA, and in the event of non-payment of the compensation, the convict was ordered to undergo an additional three months of simple imprisonment, vide judgment dated November 19, 2014. Dissatisfied with the conviction, the convict-appellant appealed to the High Court. Concurrently, the trial Court sent a reference for confirmation of the death sentence awarded to the convict-appellant. The learned High Court, through its impugned judgment dated January 9, 2023, dismissed the appeal filed by the convict- appellant and answered the reference sent by the trial Court in affirmative. 5. Raja Shujaat Ali Khan, the learned Advocate for the convict-appellant, submitted that both the Courts below rendered the impugned judgments without duly considering the evidence on record. He contended that the trial Court's judgment is a result of a misreading and non-reading of the evidence, which the High Court wrongly affirmed. He argued that there were material contradictions in the witnesses' statements that warranted the exoneration of the convict- appellant, yet the trial Court unjustifiably awarded the death sentence. He highlighted that the surrounding circumstances indicate that it was a blind murder and the alleged eye-witness, Razia Bibi, who claimed to witness the occurrence, failed to specify the time when stones were pelted on her house. Given that in the months of June and July, the sun typically rises around 4:30 am, this omission casts doubt on her testimony. He further noted that many people reside near the crime scene, yet no independent witness from the locality was cited and presented; only related and interested witnesses testified, whose testimonies cannot be reliably trusted. The learned Advocate emphasized that no FIR number was listed in the inquest report, which is a significant irregularity that undermines the case's veracity, as established in Malik Zaffar's case. He also pointed out that, according to the prosecution, the deceased was wearing a shalwar and undershirt (banyan) at the time of the occurrence, however, the serologist's report indicates that a full shirt (qameez) was also analyzed, further casting doubt on the prosecution's narrative. The Advocate mainly argued that, even if the trial Court believed that the convict-appellant was guilty, award of death penalty was unjustified, particularly with only one disputed eye-witness. Consequently, he asserted that the judgments of both; the trial Court and the High Court, are contrary to law, the facts, evidence and the record of the case. Therefore, he requested that the appeal be accepted, both judgments be
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set aside, and the convict-appellant be exonerated of the charges. In support of his contentions, the learned Advocate cited the following cases: Ghulam Mohy-ud-Din alias Haji Babu v. The State [2014 SCMR 1034] Dilawar Hussain v. The State [2013 SCMR 1582] Sikandar Hayat and another v. The State and others [PLD 2020 SC 559] Mst. Safia Bano and another v. Home Department Govt. of Punjab through Secretary and others [PLD 2021 SC 488] Abdul Haque v. The State and another [PLD 1996 SC 1] 6. Mr. Haroon Riaz Mughal, the learned Advocate representing the complainant, vigorously rebutted the arguments put forth by the counsel for the convict-appellant. He contended that the convict- appellant failed to substantiate any any legal ground warranting this Courts intervention in the impugned judgment. He asserted that the prosecution successfully established its case against the convict-appellant beyond any doubt by presenting direct, circumstantial and corroborative evidence. In contrast, he argued that the defense failed to undermine the prosecution's narrative. Mr. Mughal emphasized that the incident occurred on July 28, 2011, at 5:20 am and the FIR was promptly lodged, detailing specific roles, eye-witnesses' names and the motive. He further highlighted that a .12-bore firearm and six crime empties were recovered from the convict- appellant, which substantiated the eye-witness accounts. Moreover, he stressed that the prosecution witnesses harbored no animosity toward the convict-appellant, thus negating any possibility of false implication. Addressing to the issue of witness statements, he acknowledged minor discrepancies but argued that such inconsistencies were natural and did not undermine the prosecution's cohesive case. He reiterated that the prosecution had conclusively proven the case against the convict-appellant with cogent and reliable evidence. Therefore, he asserted that the trial Court rightfully convicted the appellant and imposed the death penalty as 'Tazir', a decision he deemed legally sound and justified. 7. Raja Mazhar Waheed, the learned Additional Advocate-General representing the State, largely echoed the arguments put forth by Mr. Haroon Riaz Mughal, the Advocate for the complainant. He asserted that both; the trial Court and the High Court, had correctly passed the impugned judgments, which, in his view, do not warrant any intervention by this Court. He reiterated that the prosecution has effectively presented a strong case against the convict-appellant supported by direct, circumstantial and corroborative evidence. He emphasized that the defense had failed to discredit the prosecution's narrative or demonstrate any significant flaws in the case presented. Furthermore, he highlighted the promptness of FIR filing, the recovery of the .12-bore rifle and crime empties, and the absence of enmity between the prosecution witnesses and the convict-appellant. He dismissed minor discrepancies in witness statements as typical and inconsequential upon the overall integrity of the prosecution's case. 8. We have heard the learned Advocates for the parties and meticulously examined the record of the case. It is evident from the record that a case was registered against the convict-appellant for the offenses under Sections 302 and 109, APC. Following the completion of the investigation and subsequent trial proceedings, he was deemed guilty of the offenses and ultimately convicted by the Court of Competent Jurisdiction. Consequently, the convict-appellant was awarded the death penalty as Tazir under Section 302(b), APC. Additionally, he was ordered to pay Rs. 200,000 as compensation to the legal heirs of the deceased, Farooq Shah, under Section 544-A, Cr.P.C. For the offense under Section 13 of Arms Act, he was sentenced to three years' imprisonment, and in default of payment of the compensation, he was to further undergo three months' simple imprisonment, as per the judgment dated November 19, 2014. Upon appeal and reappraisal of evidence, the High Court dismissed the appeal filed by the convict-appellant and confirmed his death sentence. In this case, the prosecution produced 24 witnesses to substantiate its claims, with
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the key witness being the wife of the victim, Razia Bibi, who allegedly was present with the victim at the time of the incident. Razia Bibi, the widow of the late Farooq Shah. nerves as a pivotal eye- witness. Her presence at the crime scene is inherently credible, give her status as the victim's spouse'. Witnessing the event firsthand, she accompanied her husband outside upon hearing stones pelting at their residence. There, she directly observed the convict, Shahzad, discharging a .12-bore shotgun at Farooq Shah, inflicting lethal injuries to his right arm and chest, which led to his immediate demise. Razia Bibi's testimony is vital, as she not only identifies the assailant but also provides a detailed account of the fatal shooting. She provided a detailed account of the incident occurred on July 28, 2011, at approximately 5:20 AM. In her testimony, she unequivocally identified the accused in the court. She stated that while she and her husband were asleep, they were awakened by the sound of stones intermittently hitting their roof. Her husband proceeded to the veranda to look into, and she followed closely behind him. Upon reaching the veranda, she witnessed Shahzad, the son of Babu Wilayat Shah, positioned in the maize field with a firearm aimed at her husband. Shahzad discharged the weapon, striking her husband in the right arm and the chest, resulting into his immediate death. Razia Bibi's screams attracted the attention of Manzoor Shah, who promptly arrived at the scene with Abdul Hamid and Masood Shah. Despite their swift response, the convict-appellant managed to flee the scene. This testimony is critical, highlighting Razia Bibi's direct observation of the event, her immediate identification of the assailant and her detailed description of the sequence of actions leading to her husband's death. The complainant, also a witness in the case, corroborated Razia Bibi's account He affirmed the sequence of events as described by her and subsequently approached the police authorities to lodge the FIR. The witness's consistency in recounting the incident, along with his prompt action in reporting to the police, lends further credibility to the case against the convict-appellant. 9. Similarly, other prosecution witnesses, namely Masood Shah and Abdul Hameed, being post- occurrence witnesses, clearly deposed observing the convict fleeing with a .12-bore rifle and also described the color of his dress and shoes. Sakeena Bibi, another post-occurrence witness, stated in her testimony that she also saw the convict with a .12-bore rifle passing by her house. Likewise, other witnesses, Ishfaq son of Muhammad Shafi and Farooq, son of Haji Muhammad Sain, also saw the convict on the way while attacking Muhammad Ayub, the father of the deceased. These witnesses further corroborated that the convict met Ayub on the way and pointed his gun at him, stating, "It's your turn now," indicating that he had already murdered Ayub's son. Ishfaq and Farooq intervened, contributing to saving Ayub's life from the convict. 10. The motive established by the prosecution was that there was a dispute over a piece of land amongst parties. Fifteen days prior to the incident, the father of the deceased and the deceased himself had abused the mother of the convict, fostering inimical feelings and grudge in his mind. This animosity allegedly led the convict to commit the murder of the victim. In this regard, Razia Bibi, the star witness, and Muhammad Ayub, the father of the deceased, both narrated the same motive clearly in their statements. From the questions put to Razia Bibi during cross-examination, it appears there was an admitted dispute between the parties before the occurrence. The ocular account was further corroborated by the recovery of the weapon used in the offense from the possession of the convict-appellant and the crime empties from the scene of the occurrence. 11. The rest of the witnesses are either formal in nature or have played no vital role, therefore, their testimony need not to be discussed or reappraised. 12. During the course of arguments, Raja Shujaat Ali Khan, the learned Advocate for the convict- appellant, emphatically urged for the reduction of the sentence awarded to the convict-appellant on the following grounds: I. According to the initial report, in addition to the convict, eight other individuals were accused of aiding and abetting the principal accused. However, these individuals were later on exonerated by
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the police, allegedly after the complainant party received financial incentives; II. All the witnesses produced by the prosecution are interested and related ones. Despite the availability of independent witnesses from the locality, none was brought forward to testify; and, III. The recovery memo was prepared in the presence of multiple witnesses, yet only one recovery witness was presented before the Court. 13. The learned Additional Advocate-General, present in the Court, was queried regarding the assertions made by the learned counsel for the convict-appellant, specifically concerning the presence of mitigating factors warranting a lesser punishment. He conceded that even the slightest mitigation can justify a reduction in punishment, but contended that no such factors are available in the instant case. In response, the learned counsel for the complainant unequivocally stated that once the appellant's guilt has been established by the trial Court and affirmed by the High Court, following thorough appraisal and reappraisal of the evidence, there remains no occasion or justification for reducing the sentence from death to life imprisonment. 14. Since the learned counsel for the convict-appellant has confined his argument to the grounds mentioned earlier in this judgment for the reduction of the convict's sentence, it becomes crucial for us to address this pivotal issue. Despite the conceding statement made by him in court, upon thorough reappraisal of the evidence, we find no legitimate grounds to contest the perspective upheld by the High Court on the merits of the case. 15. Section 302(b), APC, provides only two sentences, one death sentence and the other imprisonment for life as 'Tazir'. In order to better appreciate the matter, provisions of section 302, APC are reproduced below for the facility of reference:- "302. Punishment of Qatl-i-amd---Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be; (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years' where according to the injunctions of Islam the punishment of gisas is not applicable; After careful reading of the above penal clause of section 302, APC, it becomes debatable as to whether the normal penalty is death for offence of murder and be given preference invariably or the sentence of death and the life imprisonment are two alternative sentences as provided in clause (b) preceded by qualifying phrase " as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available.'' 16. Certainly, the interpretation and application of Section 302(b), APC underscores the critical discretion entrusted to the judiciary in sentencing for murder cases. While historically the death penalty has been viewed as the norm for murder offenses, the legislative inclusion of life imprisonment as an alternative sentence signifies an intent to provide judicial flexibility. This legislative intent, as seen in clause (b) of Section 302, APC, acknowledges that both; death and life imprisonment, are viable sentencing options, subject to the specifics of each case. In adherence to fundamental principles of Islamic jurisprudence on criminal law, which emphasize justice tempered with mercy-a divine attribute mirrored in judicial discretion on earth-judges are tasked with meticulous consideration and prudence in determining appropriate sentences. Factors influencing the choice between death and life imprisonment, can vary widely, necessitating a thorough examination of the facts and circumstances unique to each case. Thus, the judiciary's role in administering justice demands not only a keen understanding of legal principles but also a compassionate application of sentencing laws to ensure equitable outcomes tailored to the complexities of individual cases.
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17. In the adjudication of murder cases, even a single mitigating circumstance holds significant weight and can compel a judge to opt for life imprisonment over the death penalty. While it's impractical to establish rigid guidelines due to the varying nature of case-specific details, it is imperative that judges discharge their duty with conscientious deliberation. When faced with the decision between death and life imprisonment, judges must apply profound judicial scrutiny to the unique facts and circumstances of each case. Should any doubt linger, albeit insufficient for an acquittal, it behooves the judiciary to exercise judicial caution and opt for the alternative sentence of life imprisonment. This precaution is crucial to prevent the irreversible consequences of executing an innocent person. Respecting human life takes precedence in the judicial process, necessitating a meticulous assessm ent of evidence, acts and circumstances surrounding each murder case. Such deliberation ensures that justice is served with both fairness and compassion, thereby upholding the sanctity of human life in accordance with legal and moral principles. 18. Albeit, while there exist numerous factors and mitigating circumstances that may argue against the imposition of the death penalty and instead advocate for life imprisonment, it is prudent to refrain from establishing rigid guidelines. Each case presents unique facts and circumstances, and the factors favoring a reduced sentence for an accused person will also vary. Therefore, specific guidelines cannot be universally applied. In future cases, where comprehensive assistance and thorough research are provided, this matter can be addressed appropriately. However, in any instance where even a single doubt or ground arises, creating reasonable uncertainty in the mind of the Court or Judge regarding whether to impose the death penalty or life imprisonment, this constitutes sufficient reason to opt for the alternative course of awarding life imprisonment instead of the death sentence. 19. The Supreme Court of Pakistan, in its series of pronouncements, has dealt with identical proposition and a case almost having the same facts and circumstances came consideration of apex Court reported as Muhammad Arshad and others v. States[1], relevant portion of which, is reproduced hereunder for better appreciation:- "10. We first take up the question of sentence of Arshad appellant under section 302, P.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. Now, in the present case, there are circumstances forth-coming from the record which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellant and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased followed by scuffle/grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice." In another case reported as Dilawar Hussain v. The State[2], wherein, the Supreme Court of Pakistan, while dealing with the identical proposition held as under: "9. The facts and circumstances in the instant case are not different from the case referred supra as the single fire was shot by the petitioner, as such, there is sufficient mitigation in order to alter
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death sentence into imprisonment for life. It has neither been the mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution. In such circumstances, if the court is satisfied that there are certain reasons due to which death sentence is not warranted, the court has no other option but to impose second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner. Even otherwise, it would be unjust, to impose double sentence on the petitioner for commission of one offence as by keeping the accused in death cell for a period of 18 years, the delay in the disposal of his case being not at all attributable to him, it will be against the principle of natural justice that he is hanged by neck. In this view of the matter, we are of the considered view that such extenuating circumstances do…
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