1999SCMR396 (PLP)

RAJA AFRASIAB KHAN, J.

On 20th of December 1995, leave to appeal was granted to the appellant, Nazir Ahmad by this Court with the following order:

"On 26th of April, 1990 at 10-30 a.m., to begin with, a case under section 307/34, P.P.C. was registered on the statement of Ghulam Muhammad against Nazeer Ahmad, Ghulam Rasool and Iftikhar alias Hanif for causing injuries to Muhammad Hussain which was converted into section 302, P.P.C. on the death of the injured. On 25th of April, 1990 at 6-30 p.m., Ghulam Muhammad and Muhammad Hussain were coming home after purchasing eatables for Aftari. Muhammad Yousaf and Nazir Hussain were also coming with them. When they reached the Chowk of the village, Nazeer Ahmad, Iftikhar Ahmad and Ghulam Rasul while differently armed; all of a sudden, also entered the village with Mst. Naseem Akhtar. Muhammad Hussain had an altercation with Nazeer Ahmad etc. On this mishap, Ghulam Rasul shouted that the complainant party would not be allowed to go alive. Iftikhar Ahmad fired a shot from his carbine which missed. Nazeer Ahmad injured Muhammad Hussain by firing from his revolver. Muhammad Yousaf and Nazir Hussain attempted to apprehend the accused but they succeeded in running away with their weapons. Motive was that in the year 1986, Nazeer Ahmad abducted Mst. Naseem Akhtar, the daughter of Nazir Hussain and consequently, a case under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered. It was, however, cancelled after initial investigation. Nazeer Ahmad came to the village with abductee after about four years. Dr. Abdul Sattar P.W.1, Ghulam Muhammad P.W.2, Nazir Hussain P.W.3, Aurangzeb P.W.4, Dr. Nazar Hussain P.W.5, Muhammad Mushtaq P.W.6, Falak Sher P.W.7 and Muhammad Ayub P.W.8 appeared in support of case of the prosecution. Muhammad Younas Constable was summoned to appear as C.W.I, The allegations were denied by the accused in their statements under section 342, Cr.P.C. Their plea was that they had been implicated on account of enmity. They produced Malik Abid Hussain D.W.1, Muhammad Latif D.W.2, Mst. Parveen Akhtar D.W.3, Mst. Mukhtaran D.W.4 and Qazi Muhammad Sharif D.W.5. A learned Additional Sessions Judge, Faisalabad vide his judgment dated 20th of April 1992 convicted Nazeer Ahmad and sentenced him to death plus fine of Rs.20,000 or in default to undergo R.I. for three years. He was ordered to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default to undergo R.I. for six months. The learned Court, however, acquitted Ghulam Rasool and Iftikhar by giving them benefit of doubt. The convict challenged his conviction and sentence through appeal which was dismissed by a learned Division Bench of the Lahore High Court vide its judgment dated 30-8-1995. This petition seeking special leave to appeal has been filed against the impugned judgment of the High Court. Learned counsel has submitted that evidence of Ghulam Muhammad P.W.2 and Nazir Hussain P.W.3 was not believed by the trial Court while acquitting Ghulam Rasool and Iftikhar alias Hanif and, as such, on the basis of same set of evidence it was not possible to convict the petitioner. He argues that Ghulam Muhammad is the uncle of the deceased. Nazir Hussain P.W.3 belonged to his brotherhood. Muhammad Yousaf P.W., the third eye-witness was not produced for unknown reasons. According to the learned counsel, prosecution evidence being interested was, undoubtedly, in need of corroboration which was not brought on record for safe administration of criminal justice. It is added that at any rate, imposition of extreme penalty was not called for because the petitioner acted under the influence of his father. It was maintained that a question of family honour was also involved in the case. This being so, we would like to reappraise the prosecution evidence in the interest of justice. Leave to appeal is, therefore, granted to the petitioner. "

2. We have heard the learned counsel for the parties at some length. The necessary record has also been perused by us. After arguing his case for some time, Mr. M. Asghar Khan Rokhari, the learned counsel states that he will not press the appeal, in case, his request for grant of lesser sentence to the appellant is considered favourably. The learned State Counsel has opposed the prayer of the learned counsel for the appellant inasmuch as, according to him, it is a case of premeditated murder pure and simple. In our considered view, evidence of Ghulam Muhammad P.W.2 and Nazir Hussain P.W.3 inspires confidence and it had been rightly believed by the Courts below. Ghulam Muhammad P.W.2 is the uncle of the deceased while Nazir Hussain P.W.3 belongs to his brotherhood. Despite the above relationship, there is nothing to discard their testimony. Learned counsel submits that it is a fit case for the award of lesser sentence to the appellant because according to the eye-witnesses Ghulam Rasul, father of the appellant had raised Lalkara and exhorted his son to kill Muhammad Hussain. In this view of the matter, the appellant appears to have acted under the influence of his father, which can be treated to be a mitigating circumstance for awarding lesser sentence to the appellant This being the position, sentence of death awarded to the appellant is, hereby, converted into imprisonment for life with benefit of section 382-B, Cr.P.C. With this modification in the sentence the appeal is partly allowed. H.B.T./38-N/S Order accordingly