1990 PLP 1197 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This order will dispose of Criminal Petitions Nos.221 of 1988 and 206 of 1988; the first by the convict‑petitioner against his conviction and the second by the complainant for enhancement of sentence.

2. Convict, Mumtaz, was tried under section 302, P.P.C. for the murder of Ghulam Sarwar in the area of Chak No.9/3‑L, Killa No.2, Square No.34, within the jurisdiction of Police Station Garh Maharaja, District Jhang on 26‑6‑1984, by the learned Additional Sessions Judge, Jhang who found him guilty and sentenced him to death and a fine of Rs.10,000 payable to the heirs of the deceased, or in default of payment of the fine, to suffer rigorous imprisonment for a year. The matter was taken up in appeal and on a Reference the learned Division Bench of the Lahore High Court, Lahore after perusal of the evidence came to the finding that "it appears to us that Mumtaz Ali accused at the time of occurrence while driving his tractor damaged the water‑course being cleared by Ali Muhammad P.W. and others. This was objected to by Ghulam Sarwar deceased on account of which Mumtaz Ali fired at him with his unlicensed gun P.3 causing iris death. It appears to be a case of sudden happening." While maintaining the conviction the sentence was reduced to imprisonment for life and a fine of Rs.20,000 payable to the heirs of the deceased, in case of default in payment of the fine to suffer three years' rigorous imprisonment. This is vide order dated 6‑6‑1988.

3. Conviction was recorded and upheld in view of the ocular testimony corroborated by the incriminating recovery of the gun found to have been used by the Forensic Science Laboratory. Learned counsel for the convict‑petitioner has not shown anything militating against the conviction. Therefore, petition No.221 of 1988 is dismissed.

4. As regards the petition of the complainant for enhancement of sentence from imprisonment for life to death, the contention of the learned counsel for the petitioner is that there is nothing in the evidence to show that it was a case of "sudden happening", therefore, normal sentence of death should have been awarded to the respondent.

5. The evidence regarding the motive about a quarrel having earlier taken place about 15/16 days of the occurrence, was not believed. According to medical evidence, there was a single shot. In the overall context in which the occurrence had taken place, the finding of the learned Judges of the‑ High Court that it was a sudden happening is not shown to be a result of misreading of evidence or perverse. Reappraisal is not the function of this Court. Award of alternate sentence was within the jurisdiction of the learned Court. No interference is called for in the circumstances. The petition for enhancement of sentence is therefore, dismissed. In, view of the above. both the petitions stand dismissed. N.H.Q./M‑1241/S Petition dismissed.