1995 PLP R142 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances.

1. Allah Ditta and Allah Dad appellants alongwith two others namely Nawaz and Manzoor were tried by the learned Additional Sessions Judge, Khanewal under section 302/307/34, P.P.C. for the murder of Khuda Bakhsh and murderous assault upon Mst. Niamat Bibi in the night between 11/12‑10‑1983 in the area of Chak No. 166/10‑R, Tehsil and District Khanewal. All the four were found guilty under section 302/34, P.P.C. The appellants were sentenced to death and a fine of Rs.10,000 each, in default to suffer three years' S.I. each. They were also convicted under section 307/34, P.P.C. and each of them sentenced to ten years' R.I.; and fine of rupees five thousand each, in default two years' S.I. each. Under section 449, P.P.C. each of them was sentenced to three years' R.I. plus fine of rupees three thousand, in default to further undergo one year S.I. each. The other two accused namely Manzoor and Nawaz were also convicted under section 302/34, P.P.C. but were sentenced to imprisonment for life plus fine of rupees seven thousand each, in default to further undergo two years' S.I. They were convicted under section 307/34, P.P.C. each and sentenced to five years' R.I. with fine of rupees three thousand, in default to undergo one year S.I. each. Under section 449, P.P.C..1hey were sentenced to undergo three years' R.I. plus fine of rupees three thousand each, in default to further undergo one year S.I. each. The fines, if recovered, were to be paid to the heirs of the deceased. This is vide judgment dated 27‑10‑1986. On convicts' appeal and murder reference, the last two accused namely Nawaz and Manzoor were acquitted. The conviction of the appellants Allah Ditta and Allah Dad under section 302/34, P.P.C. was maintained. Sentence of death awarded to Allah Ditta was confirmed but that of Allah Dad altered from death to one for life imprisonment, leaving other sentences undisturbed. This is vide judgment of a learned Division Bench of the Lahore High Court dated 12‑3‑1990.

2. Contentions of the learned counsel for the convict‑appellants is that the two eye‑witnesses had not seen the occurrence and could not identify the appellants, it being night time.

3. After hearing the learned counsel for the parties we find that the eye witnesses were natural being inmates of the house and the appellants known to them. The learned trial Court found the two appellants guilty on the basis of the evidence on record. The evidence was minutely reappraised by the learned Judges of the Lahore High Court who upheld their conviction. No misreading of evidence has been pointed out. Further reappraisal of evidence is not the function of this Court. The two appellants having been found guilty by the two Courts below, no interference is called for as regards their conviction. However, as it is not certain from the evidence on record that it was the shot of Allah Ditta which killed the deceased and not of the other appellant, sentence of death awarded to Allah Ditta is substituted by the alternate sentence of imprisonment for life. Other sentences are maintained. These shall run concurrently and the appellants shall get benefit of section 382‑B, Cr.P.C. N.H.Q./A‑116/S Sentence reduced.