1988 PLP 296 (SCMR)

ALI HUSSAIN QAZILBASH, J.--These are two petitions for leave to Appeal against the Judgment of a Division Bench of the Lahore High Court, dated 24-5-1982.

2. Muhammad Aslam, Muhammad Ashraf, Muhammad Asghar, sons of Rehmat Ali, Muhammad Yousaf, Muhammad Amin, Muhammad Ashiq, Muhammad Riaz sons of Muhammad Din, Nazir Ahmad, Bashir Ahmad sons of Abdullah, Muhammad Din son of Noor Din and Ali Ahmad son of Bashir Ahmad, residents of Chak No. 471/EB, P.S. Sauhuka, Tehsil Burewala, District Vehari, were tried by the learned Sessions Judge, Vehari, for offence under section 302/307/149/148, P.P.C for the murder of Muhammad Amin their co-villager and making murderous assault on Muhammad Azim P.W.6 and Ghulam Mustafa P.W.7. The occurrence was alleged to have taken place on 17-11-1978 at 11/10 in the morning. The report of which was lodged by Muhammad Azim P.W. in the Civil Hospital Burewala recorded by Ghulam Haider A.S.I. , P. S. City. The case against the eleven accused was investigated by Ghulam Haider P.W.9 and Ghulam Ali S.I. then S.H.O., P.S. Burewala Saddar. The accused were arrested on 19-11-1978 and on 7-12-1978. A stick Exh. P.K. was recoverd from Aslam. Stick Exh. P.L. was recovered from Yousaf, stick Exh. P.O. was recovered from Bashir, stick Exh. P.N. was recovered from Riaz and stick Exh. P.M. from Ali Ahmad. None of the sticks was blood stained. Dr. Muhammad Afzal Malik conducted the post-mortem examination on the dead body of Muhammad Amin deceased and found as many as four injuries on the person of the deceased which were caused by blunt weapon. He also examined Muhammad Azim P.W. and found as many as nine injuries on his person caused by blunt weapon. Ghulam Mustafa was also examined by him and three injuries were found on his person caused by blurt weapon. After the completion of the investigation all the accused were put to trial, where the prosecution in support of its case produced as many as ten witnesses. Muhammad Aslam accused, in his statement under section

342. Cr.P.C.. admitted his relationship with the other accused, denied the other charges and deposed that he was not present at the spot on the day of occurrence. He also deposed that he did not produce stick Exh. P.K. as it did not belong to him. He further deposed that they have been falsely implicated in the case. Muhammad Yousaf accused also denied all the charges levelled against him by the prosecution. He deposed that the witnesses have falsely implicated him and that the deceased and the witnesses were injured by the persons who raised objections and protest to Azim P. W. against his behaviour. Muhammad Ashiq accused also gave a similar statement. He also denied the recovery of dang Exh. P.M. on 19-11-1978 at his instance. Muhammad Bashir accused also gave similar statement and denied the recovery of dang Exh. P.O. at his instance. Ali Ahmad accused also denied the charges and the recovery of dang Exh. P.M. at his instance. Nazir Ahmad also denied the charges and deposed that he was found innocent by the Senior Police Officers during the investigation. Muhammad Amin accused also denied the charges and stated that he by the Police. Muhammad Ashraf also denied the charges and gave a similar statement about his innocence. Muhammad, Asghar also denied the charges and stated that he was declared innocent by the Police. To the same effect statement of, Muhammad Din accused. After the conclusion of the trial, the learned Sessions Judge, on 2-8-1980. convicted Muhammad Aslam under section 302, P.P.C. and sentenced him to death. He also sentenced him to a fine of Rs.2,000 or in default to two years R.I. Bashir Ahmad, Muhammad Ashiq, Muhammad Amin and Muhammad Ashraf were found guilty of an offence under section 307, P.P.C. and sentenced to ten years R.I. each and to a fine of fts.500 or in default to one year's R.I. Riaz and Ali Ahmad were convicted under section

323. P.P.C. and sentenced to six months R.I. each. It was further ordered that out of the fine imposed to Muhammad Aslam, if realized, one-half should be paid to the heirs of the deceased as compensation. Of the fine imposed on Bashir Ahmad, Muhammad Ashiq, Muhammad Amin and Muhammad Ashraf, if realized, one half thereof shall be paid to Muhammad Azim as compensation. Muhammad Yousaf, Nazir Ahmad, Muhammad Asghar and Muhammad Din were given the benefit of doubt and acquitted.

3. The seven convicted persons then took up the matter in appeal before the High Court, where the appeal was partly allowed vide judgment of the High Court dated 24-5-1982, inasmuch as the conviction of Muhammad Aslam appellant, under section 302, P.P.C. was maintained but his sentence of death was reduced to imprisonment for life. The other sentences were maintained and the benefit of the provisions of section 382(B) of the Cr.P. C. was allowed. The conviction of Muhammad Ashiq, Muhammad Ashraf, Bashir Ahmad and Muhammad Amin under section 307, P.P.C. was set aside and were convicted of the offence under section 323, P.P.C. and sentenced to imprisonment already undergone by them. The conviction of Muhammad Riaz and Ali Ahmad appellants under section 323, P.P.C. was also maintained and their sentences were reduced to that of already undergone. Muhammad Aslam, petitioner, has now come up in this Court against the order of the High Court dated 24th May, 1982 and a petition bearing No.254 of 1982 has been filed by Muhammad Azim for the enhancement of the sentences of the seven respondents. Since both the petitions are against the same judgment, they are being disposed of by this single order.

4. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance and we are of the view that no case has been made out by Muhammad Aslam petitioner for our interference. It is a daylight occurrence, a report of which was made at the earliest opportunity. The eye-version account of the incident has been furnished by Muhammad Azim P. W.6 and Muhammad Mustafa P.W.7, who are injured witnesses and, therefore, their presence at the spot cannot be doubted. Though both the witnesses, who have given eye-version account of the incident, are closely related to the deceased, but there is no enmity between the parties and therefore, it cannot be said that they have falsely implicated the petitioner in the commission of the crime. Both the witnesses have consistently charged the petitioner for having given fatal blow to the deceased. The ocular version of the above two P.Ws. is supported by the evidence of Muhammad Ramzan P.W.3 and the medical evidence. Since the evidence of the parties have been properly appraised by the Courts below, we do not see any justification for our interference. Thus, Criminal Petition 244 of 1982 is hereby dismissed.

5. As for Criminal Petition No.254 of 1982, Azim, it too does not require any interference. No1 been brought on the record that it was a pre-planned occurrence. There is evidence on the record that before the occurrence some hot words and abuses were exchanged by the parties. It, therefore, seems that it was a sudden affair and the occurrence took place on the spur of the moment. Therefore, extreme penalty of death was rightly refused in the case of Muhammad Aslam respondent. The learned Judges also considered the role of the other respondents and thus have come to correct conclusion. This petition too has no merits and is dismissed. M.I./M-235/S Petition dismissed.