1990 PLP 488 (SCMR)

Muhammad Mushtaq has prayed for enhancement of sentence of Muhammad Arif and has challenged the acquittal of Basharat Ali and Mushtaq Ahmad son of Hayat Mohammad whereas in the other petition (Cr.P. 297/86) Muhammad Arif wants the impugned judgment to be set aside and he be acquitted. Four persons, namely, Mohammad Arif, Mushtaq Ahmad, Basharat Ali and Mohammad Sadiq were tried by the Additional Sessions Judge, Lahore, for the murder of Ibrahim alias Kala. The trial Court, by judgment dated 8-12-1983, acquitted Mohammad Sadiq. The rest were convicted under section 302/34, P.P.C. and sentenced as under:- Muhammad Arif Sentenced to death and fine of Rs. 10,000 each, Basharat Ali or in default one year R.I. each. Mushtaq Ahmed-- Imprisonment for life and fine of Rs. 10,000, or in default one year R.I. All the three were also directed to pay Rs.10,000 each as compensation to the legal heirs of the deceased, or in default, six months' S.I. each- On appeal, the High Court acquitted Basharat Ali and Mustaq Ahmad. Muhammad Arifs conviction was maintained under section 302, P.P.C.; his sentence of death was commuted to imprisonment for life. The amount of fine as well as compensation was also maintained. The occurrence in which Muhammad Ibrahim was alleged to have been murdered took place on 7-12-1981 at 9-30 a.m. at More Bassi, Behni Road which falls within the jurisdiction of Police Station, Baghbanpura, Lahore. Report was lodged by Muhammad Rashid, cousin of the deceased. It was recorded by S.H.O. Rai Mohammad Amir Khan. Motive was that two or three months prior to the occurrence, Mohammad Sadiq accused stopped the cattle of the complainant party from going to Athar area. This led to quarrel between the parties. The other cause of grievance was that Mohammad Sadiq accused was a proclaimed offender. He was wanted by C.I.A. Staff. Many raids were conducted but ultimately he on his own appeared before the police. Muhammad Arif is brother of Muhammad Sadiq. The others are also his party men. The deceased was a member of the Union Council. The accused thought that it was he who was behind the raids. The important evidence in this case is that of Liaqat P.W. 9, Mohammad Rashid P.W. 10 and Mohammad Rafiq P.W.

11. Rafiq's evidence was excluded. The High Court thought that his testimony was not worth believing. Nevertheless, the High Court was convinced that Liaqat Ali and Mohammad Rashid were present at the spot. They had seen the occurrence. Their evidence was thoroughly discussed and although they were related to the deceased, but the High Court observed, "The statements made by these two eye-witnesses did not suffer from infirmities such as material contradictions, major discrepancies and dishonest improvements." Having noticed that they were relatives of the deceased, the High Court thought it necessary to look for some corroborative evidence. Corroboration became all the more necessary because of the conduct of these two witnesses against whom the allegation was that they got released one Ashraf Gujjar, a convict, from the custody of the police who had been sentenced to imprisonment for life and had snatched a rifle from the Constable. It was found by the High Court that no corroborative evidence was forthcoming in the case of Basharat Ali and Mushtaq Ahmad. They were accordingly acquitted. There was reliable evidence against Mohammad Arif which was recovery of Carbine P.7 supported by Shabbir Ahmad PW.8 and Sub-Inspector Abbas Khan PW.15. His conviction under section 302, P.P.C. was upheld. The reason which prevailed with the High Court in commuting his sentence from death to imprisonment for life was that he had no direct motive to kill the deceased and the possibility that he might have acted under the influence of his elder brother Mohammad Sadiq could not be ruled out. We have heard learned counsel in both the petitions. Both the Advocates were unable to point out any error of law or misreading of evidence which resulted in miscarriage of justice. They wanted us to re-appraise the evidence. This is not possible for us. The reasons given by the High Court being in accordance with law no case for leave to appeal is made out. Both the petitions are accordingly dismissed. M.A.K./M-1011/S Petitions dismissed.