1988 PLP 1086 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by Muhammad Salim complainant‑petitioner for enhancement of sentence of Muhammad Sarwar respondent from life imprisonment to death under section 302/34, P.P.C. The background is that Muhammad Sarwar respondent and his brother Muhammad Tufail were tried for an offence under section 302/34, P.P.C. and the trial Court convicted both of them under the aforesaid sections and sentenced each of them to death plus fine. On appeal the Lahore High Court, Lahore maintained the conviction and confirmed the death sentence of Muhammad Tufail co‑accused but while maintaining the conviction of Muhammad Sarwar respondent reduced his sentence from death to that of imprisonment for life. The sentence of fine was however maintained. The record indicates that the petition for leave to appeal filed both by Muhammad Tufail co‑accused and Muhammad Sarwar respondent in this case against their conviction and sentence had already been dismissed by this Court. However, the present petition for leave to appeal is for enhancement of sentence of Muhammad Sarwar respondent and should have been fixed by the office alongwith the other petition. Be that as it may, we proceed to dispose of this petition as it has been fixed separately before us today. There had been a dispute between the parties about the possession of a piece of land and the case of the prosecution was that three months before the present occurrence the respondent and his brother alongwith others had trespassed into the disputed land and damaged some property thereon. The matter was reported to the police and a case was registered against them under section 427, P.P.C. read with section 148/149,P.P.C. Even after the registration of the case the respondent and his brother were threatening the deceased Shukar Ullah with dire consequences and also for taking forcible possession of the said land. On the fateful day while the deceased was making mud plaster for plastering the roof of the kotha constructed by him on the disputed land, the respondent and his brother appeared while the respondent was armed with a revolver and his brother with hatchet, and in the presence of the eye‑witnesses after raising lalkara that the deceased would not be spared, the respondent fired a shot with his revolver hitting the right thigh of the deceased whereas his brother Muhammad Tufail co‑accused inflicted hatchet blow on the back side of the left knee. The occurrence was witnessed by the eye‑witnesses. According to the medical evidence the fire‑arm injury caused on the right thigh of the deceased and attributed to the present respondent was simple whereas the other injury was grievous in nature and led to the death of the deceased. The appellate Court while maintaining the conviction of the respondent modified his sentence from death to suffer life imprisonment mainly for the reason that they were two brothers and the fatal injury had not been attributed to him. A lenient view in his case was taken on the basis of 1985 S C M R 181 (Atta Muhammad v. State). Learned counsel before us argued that since both of them are attributed injuries to the deceased no differenciation should have been made in the case of the two of them, and on that basis the sentence awarded to the present respondent should also be enhanced to death. We have considered the arguments of the learned counsel but in the instant case the view taken by the High Court is not in any way perverse. In that view of the matter we do not find any substance in this petition which is accordingly dismissed.