2012 PLP 549 (SCMR)

RAJA FAYYAZ AHMED, J.

Sentence of death on two counts for committing qatl-e-amd of deceased Amina Bibi and that of Inam-ul Haq respectively the step mother and step maternal uncle of the petitioner has been confirmed vide impugned judgment passed by the learned Lahore High Court, Lahore and the Criminal Appeal preferred by the petitioner against his conviction and sentence under section 302(b), P.P.C. as Ta'zir was dismissed, impugned herein.

2. Two ocular witnesses namely, Rana Anwar complainant (P.W.7) and Muhammad Habib (P.W.8) were produced by the prosecution besides other incriminating evidence adduced at the trial by the prosecution. Dr. Muhammad Mansha (P.W.1) and Dr. Ghazala (P.W.2) conducted the autopsy on the dead bodies of both the deceased respectively. Dhattar being the weapon of offence was recovered at the instance of the petitioner. Motive as disclosed in the report lodged by the complainant was that Amina Bibi had repeatedly been asking Muhammad Ramzan (father of the petitioner) for providing to her maintenance allowance, as a consequence whereof, the occurrence took place inside the house of the deceased persons, who were inter se sister and brother.

3. Both the learned Courts i.e. the learned High Court and the trial Court on appraisal of the entire evidence on record found the petitioner guilty on the charge. The petitioner in his statement recorded under section 342, Cr.P.C. denied and controverted the incriminating pieces of evidence and took no other plea except claiming his innocence. He also did not opt to appear on oath as his own witness in disproof of the allegation, as envisaged under section 340(2), Cr.P.C. nor produced any evidence in defence.

4. According to Malik Amjad Parvez, learned Advocate Supreme Court for the petitioner, the motive, as set up the in the report, was farfetched, which could not have been the cause of grievance for committing murder of both the deceased persons. He further submitted that complainant Rana Anwar (P.W.7) could not have been present on the date of occurrence in the house being an employed person holding a responsible government job, who is closely related to the deceased persons, whereas; the learned counsel conceded that the other ocular witness Muhammad Habib (P.W.8) is not related to the complainant or to the accused party in any degree. The learned counsel for the petitioner further argued that in the circumstances of the case, the charge against the petitioner was not proved beyond any reasonable doubt and the contradictions in the prosecution evidence required reconsideration and reappraisal of prosecution evidence in the over all facts and circumstances of the case. Moreover, the learned counsel submitted that since two out of three legal heirs excluding the complainant; Rana Anwar (P.W.7) brother of both the above said deceased persons and Ramzan (husband of Amina Bibi deceased) have compounded the offence and forgave the petitioner, therefore, extreme penalty of death was not warranted. In support of this contention, reliance has been placed by the learned counsel on the reported judgments i.e. Amir and another v. The State (2003 SCMR 561) and Muhammad Anwar v. The State (2008 SCMR 987)

5. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the petitioner appointed by the Court has placed before us copy of the order dated 21-4-2010 of this Court passed in Jail Petition No. 716 of 2009, in which on an identical point, leave was granted in view of the contention that the capital sentence to the petitioner in the circumstances was not justified for the reason that one of the legal heirs of the deceased had compromised with the petitioner. The learned counsel relying on the leave granting order has submitted that it is a fit case in which leave may be granted to consider the question.

6. According to the learned DPG, the precedent cited by Malik Amjad Parvez, learned Advocate Supreme Court for the petitioner i.e. Muhammad Anwar (supra) does not cover the proposition and is therefore not relevant.

7. Having considered the submissions put forth on behalf of the parties by their learned counsel in the light of the impugned judgment gone through carefully and the evidence on record, we are inclined to grant leave only to consider; whether the death sentence awarded by the learned trial Court and confirmed by the learned High Court was justified in view of the compromise made by two of the legal heirs mentioned above and further to consider the question as to whether on the date of occurrence, the petitioner was below the age of 18 years, as he claimed to be 19 years old when his statement under section 342, Cr.P.C. was recorded by the learned trial Court.

8. The appeal be prepared on the present record as only the question of quantum of punishment is involved. M.H./M-4/SC Leave granted.