1994 PLP 45 (SCMR)

(b) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal against acquittal‑‑‑High Court after appraisal of evidence and on consideration of the attending circumstances of the case had considered the participation of the accused in the commission of offence as highly doubtful and extended benefit of doubt to him for the reasons which were not irrelevant and extraneous to the record‑‑‑Leave to appeal was refused accordingly. Muhammad Akhtar Qureshi, Advocate‑on‑Record for Appellant. Irshad Ahmad Qureshi, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 14th March, 1993. MUHAMMAD AFZAL LONE, J.‑‑‑This order shall dispose of Cr. P. No. 390/L/92 and J. P. No.162/L/92, filed by Ghulam Hussain complainant in a murder case and Muhammad Nasir convict respectively. Muhammad Nasir petitioner‑convict alongwith Zahoor Ahmad and two others was tried under section 302/34, P.P.C., for committing the murder of the complainant's brother, namely, Muhammad Afzal. The learned Additional Sessions Judge, Jhang, sentenced Muhammad Nasir to death and awarded life imprisonment to Zahoor Ahmad. He, however, acquitted the co‑accused. Besides this, the convicts were also sentenced to pay fine and compensation to the heirs of the deceased. The High Court did not confirm the death sentence of Muhammad Nasir and altered it to life imprisonment on the ground that at the time of commission of offence he was only 16 years old; motive for occurrence was not proved and that he might have acted under the influence of his elders. As regards Zahoor Ahmad he was given the benefit of doubt and acquitted.

2. The complainant has assailed the acquittal of Zahoor Ahmad and alteration of death sentence awarded to Muhammad Nasir into life imprisonment. It is argued that the High Court fully relied upon deposition of the two eye‑witnesses i.e., Ghulam Hussain (P.W.4) and Ahmad Bakhsh (P.W.3), who entirely inculpated Muhammad Nasir and, therefore, he was rightly awarded capital punishment by the trial Court; the High Court erred to interfere therewith. The learned Counsel has been confronted with the reasons, which weighed with the learned‑ Judges of the High Court in awarding lesser sentence to Muhammad Nasir convict‑petitioner, and he could not create any dent therein. Indeed the considerations which influenced the decision of the High Court in awarding life imprisonment are well‑grounded and in the background of the case the discretion exercised by the learned Judges is in conformity with the accepted principles of safe administration of criminal justice. Criminal Petition No.390/L/92 merits dismissal.

3. As regards the acquittal of Zahoor Ahmad, one of the reasons reflected in the impugned judgment is that the hockey stick recovered from him was not found stained with blood. The learned Counsel has criticized this finding and urged that it is not in all cases that the blunt weapon, with which the injury is caused, may be stained with blood. We, however, feel that it is idle to dilate upon this controversy, for, in the F.I.R. it is nowhere stated that Zahoor Ahmad was armed with hockey stick. It is in the impugned judgment that the prosecution failed to muster any evidence that Zahoor Ahmad had any interest in the deal of the properties done by the deceased, meaning thereby that he was least concerned with the civil litigation between the deceased and Girl Muhammad accused (since acquitted). It was after appraisal of the evidence and on consideration of the attending circumstances of the case that the learned Judges of the High Court considered the participation of Zahoor Ahmad in the commission of the offence as highly doubtful. The reasons given by the High Court in extending the benefit of doubt to Zahoor Ahmad are not irrelevant and extraneous to the record. There is no substance in J.P.No.162/L/92 as well. For the foregoing reasons both the petitions are dismissed and the leave prayed for refused. N.H.Q./G‑416/5 Leave refused.