P L D 2004 Supreme Court 749 (PLP)

SYED DEEDAR HUSSAIN SHAH, J.

Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 29-1-2002, passed in Criminal Appeal No.536, Criminal Revision No.315 and Murder Reference No.S7 of 1996.

2. The prosecution case in brief is that on 14-3-1995, at about 2.00 p.m., complainant Muhammad Yaqub (P.W.2) alongwith Ayub Ahmed (deceased), Sarfraz (P.W.I) and Azhar Fareed (not produced) was standing near the wooden stall. Ayub Ahmed, who was sent to bring a tonga, had covered a short distance when the petitioner and co-accused Asim Khan alias Billu Bhayya emerged there and shouted a Lalkara that Ayub Ahmad be taught a lesson for the previous dispute. The accused took out pistols from the folds of their shalwars and started firing. Petitioner's fire hit Ayub on his right arm and abdomen below the naval. Ayub was just tottering when co-accused Asim Khan fired shots hitting Ayub on his right thigh and back, who was seriously injured and fell unconscious. The complainant and his companions tried to catch the accused but they fled away while firing in the air. Thereafter, the complainant along with his companions removed Ayub to Emergency Ward of the Mayo Hospital. The matter was reported to the Police. Muhammad Yaqub Shah S.I. (P.W.13), who found that Ayub injured was not in a fit condition to make the statement, started the investigation. After usual investigation, .the police submitted the challan against both the accused in the Court.

3. The prosecution in support of its case examined thirteen witnesses. At the conclusion of the trial, the learned trial Court vide Judgment dated 10-6-1996, convicted and sentenced the petitioner as well as co-accused under:- "Muzaffar Muhammad alias Zubair alias Veera was convicted under section 302/34 P.P.C. and sentenced to death with a fine of Rs.20,000, in default whereof to undergo R.I. for two years. The amount of fine on recovery had to be given to legal heirs of the deceased as compensation. Asim Khan alias Billu Bhayya, was convicted under sections 302/34 P.P.C but sentenced to imprisonment for life, also to pay a fine of Rs.50.000, in default to undergo R.I for two years. The amount of fine on recovery had to be paid to the legal heirs of the deceased."

4. On appeal the learned High Court maintained the conviction sentence of the accused as awarded by the learned trial Court. Hence, these petitions for leave to appeal.

5. Mr. Tanvir Ahmed, learned counsel/AOR for the petitioner, at the very outset submitted that co-accused Asim Khan alias Billu Bhayya has been awarded sentence of imprisonment for life, therefore, the sentence awarded to the present petitioner may also be modified from death to Imprisonment for life. He further stated that the eye-witnesses are chance witnesses.

6. On the other hand, learned counsel appearing on behalf of the State stated that the impugned judgment is in accordance with law and there is no misreading or non-reading of the evidence; that the trial Court as well as the learned High Court has considered the entire evidence in its proper perspective and the manner in which the petitioner committed the cold-blooded murder of Ayub Ahmad he does not deserve any leniency.

7. We have considered the contentions of the learned counsel for the parties and minutely perused the material available on the record. The role attributed to petitioner-Muzaffar Muhammad alias Zubair is supported by the eye-witnesses as well as there is circumstantial evidence in the shape of reports of Serologist and Forensic Science Laboratory, which show that empties so recovered were fired from the weapon secured from the possession of the petitioner. The High Court in this aspect has observed as under:- " There is no material whatsoever available on the record to doubt or suspect the authenticity of the report by Forensic Science Laboratory. The prosecution version thus finds a significant and credible support from the report. The manner in which the deceased was done to death does not show that there is any mitigating circumstance for considering the quantum of sentence as prayed for by learned counsel for the petitioner. The impugned judgment is entirely based on the proper appreciation of evidence and material available. This Court had time and again held that normal sentence for Qatl-e-Amd is death. In this case the charge has been proved against the petitioner, therefore, normal sentence of death has been awarded to him. The case of co-accused Asim alias Billu Bhayya is distinguishable from the case of the present petitioner because the motive was not attributed to him, therefore, the learned High Court rightly maintained the sentence of life imprisonment as awarded by the learned trial Court. It would be advantageous to refer here the relevant paragraphs of the impugned judgment, which read as under: "

19. The accused persons committed cold-blooded murder in the bazaar by resorting to repeated fires, therefore, no leniency could be shown to them. The learned trial Judge has rightly convicted the appellants under section 3 /34 P.P.C and awarded the sentence of death to Muzaffar Muhammad alias Zubair alias Veera, with a fine of Rs.20,000 in default whereof to further undergo R.I. for two years. On realization of amount of fine the same had to be paid to the legal heirs of the deceased as compensation. The conviction and sentence, as such, is upheld and maintained.

20. Appellant Asim alias Billu Bhayya has been convicted under section 302/34 P.P.C but sentenced to imprisonment for life, with a fine of Rs.50,000 in default to suffer further R.I. for two years and on realization of the same, to be paid to the legal heirs of deceased. Although he is practically equally guilty yet considering that a lenient view has been taken towards him and also that he was not party to motive, 'we do not intend to interfere in his conviction and sentence, as recorded by the learned trial Court, which is accordingly upheld and maintained.".

8. For the foregoing reasons, the impugned judgment is not open to exception, therefore, the petitions are dismissed and leave to appeal declined. M.B.A./M-123/S Petitions dismissed.