1999 PLP 2783 (SCMR)

SH. RIAZ AHMED, J.

The relevant facts giving rise to the institution of this petition seeking leave to appeal against the judgment and order dated 12-3-1997 delivered by a Division Bench of the Lahore High Court are as under:--

2. Respondents Ghulam Qasim, Falak Sher and Liyar alongwith Rohtas and Vashir were tried by an Additional Sessions Judge, Mianwali on the charge under section 148/302/149, P.P.C. having committed the murder of Raza Muhammad deceased. Vide judgment dated 24-10-1991, the learned Additional Sessions Judge by giving benefit of doubt, acquitted respondent Liyar and Vashir and Rohtas. Respondents Ghulam Qasim and Falak Sher were found guilty on the charge under section 302/34, P.P.C. Since the fatal shot was attributed to Ghulam Qasim respondent, therefore, he was awarded death sentence and to pay fine of Rs.15,000 or in default thereof to suffer R.I. for 3 years. Since the locale of the Injury attributed to Falak Sher was on the left elbow joint, therefore, he was awarded lesser penalty, i.e. life imprisonment and to pay a fine of Rs 45,000 or in default thereof to suffer R.I. for a term of 3 years. Liyar was acquitted on the ground that in the F.I.R. the prosecution case was that Liyar was armed with a rifle and had fired a shot hitting the deceased Raza Muhammad, but injury No.3 on his person was found to be an injury caused by a pellet, therefore, the learned trial Judge as well as the High Court acquitted him by giving benefit of the doubt, Another reason which weighed with the learned trial Court to acquit Liyar respondent was that during the investigation the police did not array him as an accused, but at the commencement of the trial he was summoned by the Additional Sessions Judge tee face the trial. The convicts/respondents Ghulam Qasim and Falak Sher filed in appeal while the case was also referred by the learned Additional Sessions Judge to the High Court under section 374, Cr.P.C. The appeal and the murder reference were disposed of vide judgment impugned. The learned Judges of the Division Bench of the Lahore High Court seized of the appeal maintained the conviction of Ghulam Qasim and Falak Sher, but the death sentence awarded to Ghulam Qasim was altered to sentence of life imprisonment. In the High Court the complainant petitioner had also filed a revision petition calling in question the acquittal of Rohtas, Bashir and Liyar and also prayed for the award of compensation under section 544-A, Cr.P.C. The High Court declining to interfere with the acquittal of the three aforementioned persons, however, directed Falak Sher and Ghulam Qasim respondents to pay Rs.25,000 each as compensation to the heirs of the deceased. Aggrieved by the impugned orders of the High Court, Karam Dad petitioner seeks leave to appeal against the reduction of sentence of Ghulam Qasim and has also prayed enhancement of sentence awarded to Falak Sher and has assailed the acquittal of Liyar.

3. We have heard the learned counsel at length and have perused the evidence on record. We have noticed that prima facie no valid reasons have been advanced while awarding lesser sentence to Ghulam Qasim respondent. The learned Judges of the Division Bench of the Lahore High Court concluded that the charge against the convicts/respondents Ghulam Qasim and Falak Sher stands proved on the record through the evidence of two eyewitnesses. The High Court also came to the conclusion that these two convicts/ respondents had used their rifles in killing Raza Muhammad deceased. It further opined that the conviction of these respondents by the trial Court was based on sound reasons and evidence of unimpeachable character. Having concluded so, the learned Judges then stated that it was immaterial as to whose fire hit at what place on the person of the deceased, and therefore, the case of Falak Sher was more or less on the same footing. Having held so, the learned Judges then without giving any reason, converted the death sentence awarded to Ghulam Qasim into life imprisonment. Prima facie, there are no mitigating circumstances on the record to justify the award of lesser penalty to Ghulam Qasim respondent. As far as Falak Sher respondent is concerned, since the injury attributed to him was not on the vital part of the body of the deceased and according to the medical evidence the injury attributed to Ghulam Qasim, was sufficient in the ordinary course of nature to cause death, therefore, we are of the view that the award of lesser penalty to Falak Sher is not open to exception. As far as Liyar respondent is concerned, we are of the view that his acquittal is based upon sound reasoning because the injury attributed to him with a rifle was not the injury of a bullet, but was a pellet injury.

4. In the light of the above discussion, we grant leave to appeal to examine the legality of the lesser penalty awarded to Ghulam Qasim. However, leave to appeal qua Liyar and Falak Sher respondents is declined. N.H.Q./K/-44/S ????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.