1997 PLP 1964 (SCMR)

(e) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑‑Appeal for enhancement of sentence‑‑‑Award of sentence of imprisonment for life to accused was based on the principles laid down by Supreme Court which did not call for any interference. Ghulam Muhammad v. State 1972 SCMR 393; Ameer Umar v. State 1976 SCMR 338 and Muhammad Jamal v. State 1997 SCMR 1595 ref. Malik Rab Nawaz Noon, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Cr.P. No. 132 of 1995). M. Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent (in Cr.P. No. 132 of 1995). Date of hearing: 17th June, 1997. RAJA AFRASIAB KHAN, J.‑‑‑On 5th of February, 1988 at 2‑20 p.m., a case under section 302/307/148/149 P.P.C. was registered with Police Station Fateh Jang, District Attock on the basis of dying declaration of Muhammad Aslam in respect of incident which took place at 11‑30 a.m. on the same day against Akhtar Shah, Pervaiz, Sajjad Shah, Zulfiqar Shah, Gulzar Shah, Mehrban, Tahir Abbas Shah and Nusrat Hussain Shah for the murder of Muhammad Aslam. Muhammad Aslam (deceased) stated that early in the morning on the day of incident, he alongwith Rab Nawaz, Muhammad Ayyub, Abdullah Khan and Muhammad Nawaz went to Dhoke Mian Achha in order to attend lunch which was arranged by Ghulam Shah. When they reached near the village, the abovenamed accused while armed with fire‑arms were lying in ambush and on seeing the complainant party, fired at Muhammad Aslam. The shots having been fired by Akhtar Shah, Pervaiz, Sajjad Shah and Gulzar Shah hit him. The remaining accused had also fired at him. An alarm was raised by Muhammad Aslam. In consequence, the P.Ws. saved him from the onslaught of the accused. He was taken to Civil Hospital Fateh, Jang where his statement Exh.P.C. was recorded at 1‑45 p.m. by Ch. Inayatullah, MIC, Fateh Jhang on ?the certificate of Dr. Kahlid Faiz P.W.1 that the injured was fit to make a statement. Motive is that Muhammad Aslam, deceased had murdered the father of Akhtar Shah and brother of Gulzar Shah. He was challenged in the case but was acquitted by the Court. Muhammad Aslam, deceased had also committed the murder of grandfather of Pervaiz. In that case, he was acquitted by the Court. On account of this inimical background, the accused had attacked and injured him. The. prosecution, in order to prove its case, produced evidence while the accused in their statements under section 342, Cr.P.C. denied the allegations levelled against them. They pleaded that they had been involved falsely in the case on account of established enmity. No evidence was led by them to support their plea. Apart from the above dying declaration Exh.P.C. of Muhammad Aslam, the incident was witnessed by Rab Nawaz P.W.8 and Muhammad Ayub P.W.9. An Additional Sessions Judge, Attock vide judgment dated 22‑1‑1990 convicted Akhtar Shah, Pervaiz and Sajjad Hussain Shah under section 302/34, P.P.C. and sentenced them to imprisonment for life plus fine of Rs.20,000 (rupees twenty thousand) each or in default thereof, to further undergo R.I. for two years each. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation. The conviction against the accused was recorded by the trial Judge on the strength of dying declaration and eye‑witness account which was provided by Rab Nawaz P.W.8 and Muhammad Ayub P.W.9. Tahir Abbas Shah, Gulzar Shah, Nusrat Hussain Shah, Zulfiqar Shah and Mehrban were, however, acquitted by giving them the benefit of doubt holding that they did not fire effectively at the deceased. Reliance in this behalf was placed on the dying declaration itself. Criminal Appeal No.8 of 1990 was filed by the convicts to challenge their conviction and sentence. Criminal Revisions Nos.26 of 1990 and 11 of 1991 were instituted by Muhammad Shafique, the son of the deceased for enhancement of sentence and against the acquittal of Zulfiqar Shah, Gulzar Shah, Mehrban, Nusrat Hussain Shah and Tahir Abbas Shah. The Lahore High Court vide judgment dated 28‑6‑1995 dismissed the appeal and the revisions observing:‑‑ "

11. The upshot of the above discussion is that the prosecution has proved its case against the appellants beyond reasonable doubt; hence there is no merit in this appeal, which is accordingly dismissed. Similarly, for the reasons given above, Criminal Revision No. ll of 1991, against the acquittal of five respondents is also devoid of force and the same is dismissed in limine.

12. With regard to the enhancement of sentence of the appellants, I find that the instant murder was committed by them in order to take revenge of the previous murders in their family committed by the deceased in which he was acquitted. It is a sufficient mitigating circumstance in the eye of law in favour of the appellants. The discretion exercised by the learned trial Judge in not awarding the .normal penalty of death to the appellants in the circumstances cannot be said to be fanciful or against the settled principle of administration of criminal justice; hence their sentence needs no interference. Criminal Revision No.26 of 1990 is also dismissed in limine. " Criminal Petition No. 132 of 1995 has been moved by Muhammad Shafique against all the eight accused who were originally nominated in the dying declaration. About the three respondents; it has been prayed that their sentence may be enhanced from life imprisonment to death while the acquitted accused may be dealt with according to law by giving them adequate punishment. It has been prayed that sufficient compensation may also be ordered to be paid to the legal heirs. Jail Petition No. 115 of 1995 has been sent by Akhtar Shah and Sajjad Shah the convicts to call in question their conviction and sentence. We intend to dispose of these petitions together as they arise out of the common impugned judgment.

2. Learned counsel for the petitioner has submitted that the prosecution has proved its case beyond reasonable doubt inasmuch as all the eight accused were specifically. nominated by the deceased, Muhammad Aslam in his dying declaration with specific roles in the commission of the crime. According to the learned counsel, dying declaration has been believed by the Courts below and as such, there was no alternative but to award normal penalty of death to the convicts. Learned counsel argued that the remaining accused were also liable to be convicted because their presence at the spot during the commission of the crime, was proved beyond doubt inasmuch as they also indulged in firing at he deceased. Learned counsel has drawn our attention to the finding having been recorded by the High Court to show that the dying declaration of Muhammad Adam was recorded without delay when he was found by the doctor to be fit to make a statement about the incident. It is added that once the prosecution evidence has been believed by the trial Court there is no justification with it to have awarded lesser punishment to the convicts because there are no mitigating circumstances available to do so. According to the learned counsel, the fact of enmity of murder cannot be a good ground for awarding lesser sentence.

3. We have not been impressed with the argument of the learned counsel for the petitioner for the reason that even the dying declaration referred to above does not disclose that the acquitted accused have injured the declarant by firing with their weapons. There is an allegation of firing but there is no evidence having been brought on record to show that their shots have also hit Muhammad Aslam. This being the position, we are of the view that the respondents Nos.4 to 8 were rightly acquitted by the Courts below as there was no evidence against them. It is by now well‑settled that this Court is slow to interfere with the judgment of acquittal unless it is shown that a gross injustice has been done or it is perverse, or the reasons having been given in support of it are altogether artificial or shocking. No such thing could be pointed out by the learned counse! for the petitioner so far the acquittal of respondents Nos.4 to 8 is concerned There is, therefore, no justification to interfere with their acquittal. Similarly, we are of the view that respondents Nos. l to 3 have properly been punished by awarding them imprisonment for life. Their conviction is based on the dying declaration Exh.P.C. of the deceased. It was corroborated by the confidence? inspiring evidence of Rab Nawaz P.W.8 and Muhammad Ayub P.W.9. We are fully satisfied with the intrinsic value of the prosecution evidence which is sufficient to convict the respondents Nos. l to 3, It is also well‑established that it is the trial Court or the appellate/revisional Court to determine/assess the quantum of sentence which has to be awarded to the accused keeping in view the peculiar facts and circumstances of each case. In case of Ghulam Muhammad v The State (1972 SCMR 393), following observations were made by this Court:‑‑ "Finally, as regards the sentence, this is primarily a matter for the trial Court and the Courts acting in appeal or revision, and the Supreme Court would not ordinarily interfere by imposing its own assessment of the appropriate punishment, unless it be shown that the sentence is against law or otherwise not in accordance with sound judicial principles. These conditions are not present in the instant case. " This view seems to have been upheld in Ameer Umar v. The State (1976 SCMR 338) wherein the following dictum has been laid down:‑‑ "As regards the sentence, it is not the normal practice or province of this Court to interfere with a legal sentence. It is primarily for the trial Court or the appellate and the revisional Courts to assess the appropriate quantum of sentence which would meet the ends of justice. " This rule was followed by this Court (Muhammad Jamal v. The State 1997 SCMR 1595). We hold the view that award of sentence to the respondents Nos. 1 to 3 is based on the principles having been laid down by this Court in the above cases. No case for interference on that ground has been made out by the learned counsel. We do not find any substance in the jail petition because the case against the petitioners, as already mentioned above, stands proved beyond any shadow of doubt on the basis of dying declaration of Muhammad Aslam and other prosecution evidence. In this view of the matter, there is no substance in these petitions which are hereby dismissed by refusing leave to appeal. N.H.Q./M‑39/S ????????????????????????????????????????????????????????????????????????????????????????????? Lave refused.