1994 PLP 1232 (SCMR)

AJMAL MIAN, J.‑‑This is a petition for leave to appeal against the judgment dated 30‑11‑1992 passed by a Division Bench of the Lahore High Court in Criminal Appeal No.315 of 1990 and Murder Reference No.123 of 1990, arising out of the judgment dated 21‑4‑1990 of the learned Additional Sessions Judge, Sheikhupura, acquitting the two co‑accused Sawalla and Ayyub and convicting the private respondents under section 302/34, P.P.C. for the murder of Nausher, aged 18/19 years, and awarding the sentence of death with a fine of Rs.8,000 or in default to undergo one year R.I. and also with the direction to pay compensation of Rs.10,000 each to the legal heirs of the deceased or in default of payment of compensation, six months' R.I. each, allowing the same to the extent of converting the sentence of death into imprisonment for life for the following reasons and consequently rejecting .......... "The contention of the learned counsel for the appellants with regard to the quantum of sentence requires serious consideration. We have noticed that the motive was directed against the deceased. At the time of earlier murder, which took place 4 years before the present occurrence, the deceased was 12/13 years of age. It was also in evidence that both the sides lived in the village yet no unpleasant incident ever took place. It was established that Zulfiqar, against whom motive was directed, was available, yet no harm was done to him. In these circumstances, we hold that the prosecution has not been able to prove motive beyond doubt. For what has been discussed above, we hold that the prosecution has been able to prove its case against the appellants beyond reasonable doubt. The eye‑witnesses are truthful and confidence inspiring, therefore, can safely be relied upon. In these circumstances, the appeal is dismissed. The sentence of death of both the appellants is, however, converted into imprisonment for life for the reasons discussed above. The sentence of fine of both the appellants, or in default thereof, al well as compensation, or the sentence of imprisonment in default of payment of the same, is, however, maintained." The petitioner has, therefore, filed the above petition for leave to appeal.

2. In support of the above petition, Khawaja Muhammad Afzal, learned counsel for the petitioner, has vehemently urged that the reasons which prevailed with the learned Judges of the Division Bench for reducing the sentence from death to life imprisonment are not sustainable inasmuch as they proceeded on the assumption that the deceased Nausher and his brother Zulfiqar were living in Mat Kalian at the time of the incident, though factually after the murder of Muhammad son of Noora, the complainant party sold their land and property in Mat Kalian and migrated to Lahore. In support of his above submission, he has referred to the statement of P.W.7 Mst. Fateh Bibi, the complainant, and the F.I.R. (Exh.P/G), wherein the following averments have been made:‑‑ Extract from the statement of P.W.7: "After the murder of Muhammad, we disposed of our land and property in Mat Kalian and migrated to Lahore." Extract from the F.I.R.:

3. It is true that after the murder of Muhammad son of Noora, the complainant party was no longer residing in Mat Kalian but the fact remains that the alleged murder had allegedly taken place at the behest of Zulfiqar and not at the stance of the deceased Nausher and, therefore, apparently the accused party would have killed Zulfiqar and not Nausher, who was hardly 12/13 years of age at the time of the above murder. If the accused party wanted to kill Zulfiqar, they could have waylaid him at any other place. In our view, the learned Judges of the High Court have not committed any error of law in reducing the above sentence. Leave is, accordingly, refused. N.H.Q/F‑290/S?????????????????????????????????????????????????????????????????????? Leave refused.