1987 PLP 1919 (SCMR)

JAVID IQBAL, J.--Criminal Petition for Leave to Appeal No.403 of 1984 has been filed by Ghulam Ahmad complainant for enhancement of sentence of Sher Mohammad respondent to death and against acquittal of his three co-accused namely Atta Mohammad, Ghulam Jilani and Mohammad Ali, whereas Jail Petition for Leave to Appeal No.65-R of 1984 has been filed by Sher Mohammad against his conviction and sentence awarded to him by the Lahore High 'Court, Lahore. This petition is barred by 13 days. Since both these petitions are directed against the same judgment of the Lahore High Court Lahore, these are being taken up and disposed of together. Sher Mohammad alongwith 3 acquitted co-accused, namely, Atta Mohammad, Ghulam Jilani and Mohammad Ali, all armed with fire-arms were tried for the murder of Atta Mohammad under section 302/34 PPC by the Sessions Judge, Mianwali who vide his judgment dated 19th January 1982 convicted all of them under section 302/34 PPC and sentenced them to imprisonment for life plus fine. In appeal before the Lahore High Court Lahore a learned Single Judge vide his judgment dated 28th October 1984 acquitted Atta Mohammad, Ghulam Jilani and Mohammad Ali, whereas he maintained the conviction and sentence awarded by the trial Court to Sher Mohammad. The revision filed by Ghulam Ahmad petitioner in Criminal Petition for Leave to Appeal No.409 of 1984 praying for enhancement of sentence was dismissed. Two motives as set up by the prosecution were that Allah Yar step-brother of the deceased and Sher Mohammad had a fight a year before the occurrence and it was in this background that Sher Mohammad had murdered the deceased. The second motive is that Sher Samad maternal-uncle of the deceased had filed a pre-emption suit against one Ghulam Abbas. The deceased used to help Sher Samad whereas Sher Mohammad used to side with Ghulam Abbas. Both these motives had been rightly disbelieved by the learned appellate Courts as far-fetched. From Sher Mohammad and his three acquitted co-accused fire arms were recovered after their arrest but no crime empties were found from the spot and therefore the recovery evidence is of no consequence. According to the medical evidence the deceased had sustained a single fire-arm injury on his chest which is attributed to Sher Mohammad only, for it is stated in the FIR that the acquitted co-accused fired one after the other but did not hit the deceased who had already fallen down on the ground as a result of the shot fired at him by Sher Mohammad. The case of the prosecution is based on the ocular testimony of Ghulam Ahmad and Habibullah PWs 7 and 8 who have been relied upon by the Courts below. According to the ocular testimony Sher Mohammad and his three acquitted co-accused surprised the deceased on a pathway at 7-30 p.m. on 23rd July 1980 within the area of Mouza Tibbi, 17 miles from Police Station Musa Khel, District Mianwali. Sher Mohammad petitioner was the first to fire a shot which hit the deceased on the chest and he fell down. Thereafter, the three acquitted co-accused fired through their fire-arms at the deceased one after the other but their shots did not hit him. Learned counsel for Ghulam Ahmad complainant-petitioner in Petition No. 409/84 argued that the finding of the appellate Court is to the effect that Sher Mohammad had fired the shot at the deceased which had hit him while the three acquitted co-accused might have also been present there. It is therefore submitted that since they were present alongwith the accused-petitioner namely Sher Mohammad they should have not been acquitted. So far as Sher Mohammad is concerned it was argued that according to the ocular testimony he had fired a fatal shot at the deceased and therefore even if the motives as set up by the prosecution could not be proved as held by the appellate Court, he should have been awarded the usual sentence of death and not life imprisonment. In the jail petition (Jail Petition for Leave to Appeal No.65-R of 1984) filed by Sher Mohammad petitioner, the contention raised is that the uncorroborated ocular testimony should have not been believed at all by the trial Court as well as appellate Court. We have considered the arguments raised by learned counsel for the petitioner in Criminal Petition for Leave to Appeal No.409 of 1984 and the contentions submitted in Jail Petition for Leave to Appeal No.65-R of 1984, but in our view the impugned judgment of the Lahore High Court Lahore does not call for any interference in the circumstances of the present case. As a result both the aforesaid petitions are hereby dismissed S.Q./G-42/S Petition dismissed