1996 PLP 997 (SCMR)

Qazi Muhammad Saleem for Petitioner. Zafar Pasha Chaudhry, Advocate instructed by Mahmood A. Qureshi, Advocate-on-Record for Petitioner (in Cr.P.L.A. No. 214-L of 1993). Abdus Satter Najam, Advocate-General, Punjab instructed by Rao Muhammad Yusuf Khan, Advocate-on-Record for the State. Date of hearing: 15th January, 1994. SHAFIUR RAHMAN, J.--The complainant as well as the convict by separate petitions seek leave to appeal against the judgment of the Lahore High Court dated 7-2-1993 whereby the conviction of Muhammad Shafique convict (petitioner in J.P.85/93) was maintained under section 302, P.P.C. and the sentence of the death awarded to him was confirmed while the acquittal of his father Muhammad Rafique ordered by the trial Court was maintained and the revision petition filed by the complainant against that acquittal was dismissed.

2. About a month before the occurrence for which the convict was tried, Asif a brother of the complainant Muhammad Ashraf was implicated in the murder of Tariq a brother of convict Muhammad Shafique. In order to avenge that murder, on 25-5-1988, when the deceased Ali Muhammad father of the complainant and the aforesaid Asif were entering the mosque for their Maghrib prayer, Ali Muhammad was fired at by Muhammad Shafique on a Lalkara said to have been given by Muhammad Rafique who is also said to have fired an ineffective shot to avoid apprehension. The occurrence was witnessed by Muhammad Ashraf (P.W.7) the complainant, and Muhammad Saleem (P.W.8), the other two related eye-witnesses Muhammad Bashir and Muhammad Anwar having been given up at the trial.

3. The trial Court believed the ocular evidence, convicted only Muhammad Shafique and sentenced him to death and a fine of Rs.10,000 and held him liable to pay as compensation an amount of Rs.10,000 to the heirs of deceased Ali Muhammad. The co-accused Muhammad Rafique, who was attributed a Lalkara and an ineffective shot, was given benefit of doubt and acquitted. While seized of the case of death sentence and the revision against the acquittal of the father of the convict, the High Court reappraised the evidence and maintained the conviction of Muhammad Shafique and the acquittal of Muhammad Rafique, and confirmed the sentence of death awarded to Muhammad Shaft.4ue. Hence these two petitions.

4. The occurrence has admittedly taken place at the entrance of the mosque. It was Maghrib Prayer time. The presence of the eye-witnesses is fully accounted for. The enmity over the murder of Tariq was too recent. It could have prompted the convict independently to have caused the death of a member of the family of the supposed culprit Asif. The ocular evidence has been believed. We do not find any infirmity in the same the convict being of thirty years of age the prompting by the father, even if it was there, could not act as mitigation nor the recent occurrence of death of Tariq at the hand of Asif, because the trial had to take place and there was no occasion to pre-empt the process of law by taking personal revenge against another. The cases cited by the learned counsel for the petitioner/convict, Muhammad Din v. The State (1985 SCMR 625) anal Ajun Shah v. The State (PLD 1967 SC 185) are distinguishable. Ajun Shah's case has been noted and distinguished in Abdul Ghaffar v. The State (1973 SCMR 39). The case of Muhammad Din is distinguishable on the ground that therein the convict was of very tender age when he committed the crime. Hence, we find no reason to interfere with the conviction and sentence awarded to the convict Muhammad Shafique. Leave to appeal is, therefore, refused in the Jail Petition for Leave to Appeal No.85 of 1993.

5. As regards the other petition preferred by Muhammad Ashraf, the complainant has sought leave to appeal against the acquittal of Muhammad Rafique by the trial Court which order has been maintained by the High Court. No case is made out against acquittal of Muhammad Rafique. Leave to appeal is, therefore, also refused in Cr.E.L.A. No.214-L of 1993. N.H.Q./M-2215/S Leave refused.