2002 PLP 1804 (SCMR)

Nemo for Respondents (in both Appeals). Date of hearing: 14th March, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑‑Criminal Petition No.822‑L of 2001 for special leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been filed against the judgment dated 14‑11‑2001 passed by a Division Bench of Lahore High Court, Lahore, in Criminal Appeal No.1279 and Murder, Reference No.482‑T of 1999, through which the conviction and sentence awarded to the petitioner by the trial Court were maintained. The petitioner and his co‑accused namely Muhammad Aslam alias Achu and Muhammad Ismail' were tried under section 459, P.P.C. for trespassing and under section 302(b), P.P.C. for committing murder of Ghulam Rasool, Mustafa. Murtaza sons of Muhammad Din, Mst. Sobia Bibi and Mst. Zohra Bibi by the Special Court established under Anti‑Terrorism Act, 1997, at Lahore. The learned trial Judge having found the petitioner and his co‑accused guilty of the charges, vide judgment dated 26‑11‑1999; convicted and sentenced them as under:‑‑ (a) Under section 302(b), P.P.C. sentenced to death to all the three accused with the direction to pay Rs.1,00,000 each to the legal heirs of the deceased, on each count, under section 544‑A, Cr.P.C. and in default to suffer R.I. for two years each, on each count. (b) Under section 459, P.P.C. imprisonment for life with the fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for one year each. The High Court in appeal, in the light of plea taken by the present petitioner in his statement under section 342, Cr.P.C. that he alone was responsible for causing murder of the five deceased, acquitted Muhammad Aslam alias Achu and Muhammad Ismail from all the charges giving them the benefit of doubt and while maintaining the conviction and sentence of the petitioner on all counts, dismissed his appeal. Learned counsel for the petitioner has sought leave to appeal on the following grounds:‑‑ (a) That the High Court having accepted the version of the petitioner that he, upon seeing Mst. Sobia his sister, lying on a cot with her paramour, Murtaza, was provoked and losing self‑control due to the Ghairat killed both of them and in the same state of mind also killed Mustafa. Ghulam Rasool and Mst. Zohran on their interruption has wrongly ' convicted and sentenced the petitioner under section 302(b), P.P.C. as in the given circumstances, the case would squarely fall within the ambit of section 302(c), P.P.C. for the purpose of sentence. (b) That the, petitioner being less than 18 years of age at the time of occurrence, would be entitled to the benefit of section 306, P.P.C. read with section 308, P.P.C. and could not be awarded the capital punishment of death but unfortunately, the learned trial Judge as well as the High Court while excluding the documentary evidence i.e. birth certificate (Exh.8‑A/1) of the petitioner from consideration deprived him from the statutory benefit available under sections 306 and 308, P.P.C. Learned counsel contended that the alleged occurrence had taken place on 21‑8‑1995 and according to the date of birth given in the birth certificate, petitioner was of the age of 17 years and 10 months on the said date and that there being no evidence in rebuttal the finding of the trial Court and also of Appellate Court relating to the age of the petitioner, would not be supported by any evidence. The above contentions raised by the learned counsel for the petitioner‑convict would need consideration for which the reappraisal of evidence is necessary. The question whether the occurrence took place in the manner as stated by the prosecution or the version given by the petitioner was correct, also needs examination. We, therefore, find it a fit case for grant of leave in this petition as well as in the connected Petition bearing No: 123‑L of ‑2002 filed by the complainant against the acquittal of Muhammad Aslam alias Achu and Muhammad Ismail co‑accused of the present petitioner. Order accordingly. N.H.Q./M‑355/S Leave ranted.