2006 SCMR 1251 (PLP)

RANA BHAGWANDAS, J.

This order shall dispose of the aforesaid three petitions directed against conviction of respondent Muhammad Nadeem Sajid and acquittal of respondent Danish by Lahore High Court under the provisions of section 311/34, P.P.C. upholding conviction of Muhammad Nadeem Sajid and sentence of imprisonment of fourteen years with payment of Diyat amounting to Rs.2,35,375 to the. legal heirs of deceased Umar Daraz.

2. Case against both the respondents was registered on the basis of F.I.R. dated .29-11-1999 at Police Station Jhang Bazar, District Faisalabad, under section 302/34, P.P.C. for commission of Qatl-i-Amd of Umar Daraz. It is alleged that on the fateful day both the respondents emerged on a motorcycle driven by Danish confronted P.W. Muhammad Akram, deceased Umar Daraz and Shahid Mehmood who were on their way to the District Court, Faisalabad. Effective firing from 30 bore pistol is attributed to the respondent Muhammad Nadeem Sajid, while Danish was only driving the motorcycle. Before conclusion of the trial, widow of the deceased Mst. Azra Bibi entered into a compromise with the respondents whereas remaining legal heirs did not agree to it whereupon the trial Court proceeded to record the conviction and sentence in terms of section 311, P.P.0 as aforesaid. Petitioner Ghulam Haider as well as respondent Muhammad Nadeem Sajid challenged vires. of the judgment of the trial Court in two appeals which have been disposed of by the high Court through the common judgment impugned in the aforesaid petitions with the exception that respondent Danish has been acquitted of the charge on reappraisal of evidence.

3. We have heard Mr. M.A. Zafar learned Advocate Supreme Court for petitioner, Ghulam Haider and Mr. Abdur Rehman Madni learned Advocate Supreme Court for respondent Muhammad Nadeem Sajid. With their assistance, we have gone through the impugned judgment as well as the record. It is inter alia contended that the case against respondents would not fall under the provisions of section 311, P.P.C. read with section 304, P.P.C. In fact respondents were liable to conviction and sentence within the contemplation of proviso to section 302(b), P.P.C. and that provisions of section 311, P.P.C. would not be attracted in the circumstances. Learned counsel submitted that by virtue of amendment in section 345, Cr.P.C. after insertion of Islamic Provisions relating to punishment under Qisas and composition of offence in the absence of proof of Qatl-i-Amd liable to Qisas all the legal heirs of the deceased could enter into compromise with the respondents. Reliance is placed on the judgments reported as Muhammad Aslam v. Shoukat Ali 1997 SCMR 1307 and Muhammad Saleem v. The State PLD 2003 SC 512 which prima facie support the view of the learned counsel.

4. We are, therefore, inclined to grant leave to reappraise the evidence and to examine inter alia the question whether respondent Muhammad Nadeem Sajid was liable to punishment under section 302(b), P.Y.C. because other legal heirs of the deceased did not compound the offence. Likewise reasons leave to appeal is granted to Muhammad Nadeem. Sajid petitioner in Criminal Petition No.198-L of 2003, against his conviction and sentence as entire evidence needs to be reappraised and re-examined.

5. As regards respondent Danish, the High Court has dealt with this case elaborately and noticed that he did not play any active role in the commission of the crime except being an innocent driver of the motorcycle. Indeed he had neither any motive for taking the life of the deceased nor had he any intention or reasonable knowledge of Qatl-i-Amd of the deceased on the part of the principal accused. Undisputedly he was not carrying any weapon therefore, High Court appears to be right in taking the view that he might not have shared a common intention with his co-accused to cause the death of the deceased. On examination of the record, we are inclined to endorse the same view and do not find any strong ground for reappraisal of evidence against the said respondent. Even otherwise, finding of the High Court acquitting a person on the basis of well-reasoned, correct and consistent approach is entitled to much weight which always double the initial presumption of innocence of an accused. No ground for leave is thus, made out against this respondent.

6. For the foregoing reasons, leave to appeal is granted in Criminal Petitions Nos.193-L and 198-L of 2003 while leave is refused in Criminal Petition No.194-L of 2003. S.A.K./G-19/SC Order accordingly.