2006 PLP 1496 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

Both these petitions, one by the complainant and the other by the convicts, for leave to appeal, are directed against judgment, dated 5-11-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1068 of 1999.

2. Both the respondents Nos.1 and 2 and four others were accused in case F.I.R. No.189, dated 22-10-1996 registered at the instance of Muhammad Akram under sections 148/302/120-B/149, P.P.C. at Police Station, Piplan, District Mianwali for the murder of his son Javed Akram. He alleged therein that on 22-10-1996 at about 8-30 a.m. his son Javed Akram while returning to his house from the Bazar on a bicycle was intercepted by the respondents (petitioners in connected Jail Petition No.460 of 2002) namely Mushtaq Ahmed and Kashmir, each armed with .12 bore pistol along with other co-accused Shabbir armed with .30 bore pistol, Amir and Ahmad Hassan empty-handed. The respondent Mushtaq Ahmed raised a Lalkara upon which the respondent Shabbir fired at Javed Akram deceased who escaped by entering the shop of Ghulam Rasool. He was chased by the respondents who both fired one shot each at the deceased Javed Akram hitting on right and left side of the chest and left and right arms who succumbed to the injuries on the spot. The occurrence was stated to have been witnessed by Mushtaq Ahmad son of Manzoor Ahmad, Dost Muhammad besides Muhammad Akram complainant. The motive for the occurrence was that in the year 1999 Ghulam Muhammad, was father of Mushtaq Ahmed respondent was allegedly murdered by the complainant and 11 others in which case the complainant was acquitted.

3. The respondents and their co-accused were tried by the Additional Sessions Judge/Special Judge S.T.A. Court-III, Mianwali. The trial Court, by judgment, dated 1-10-1999, convicted both the respondents under section 302(b)/34, P.P.C. and sentenced each of them to death as Tazir and to pay compensation of one lac each to the legal heirs of the deceased. However, their co-accused were acquitted. The respondents filed Criminal Appeal No.1068 of 1999 against their conviction and sentence of death. The Lahore High Court, by the impugned judgment, dated 5-11-2002 upheld the conviction of the respondents and dismissed their appeal. However the sentence of death of the respondents was reduced to imprisonment for life with benefit of section 382-B, Cr.P.C. The respondents were also directed to pay compensation of Rs.1,00,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default whereof to further undergo six months S.I. Hence these petitions for leave to appeal.

4. The learned counsel for the petitioner/complainant argued that Qatl-e-Amd of Javed Akram was committed by the respondents after pre-meditation, deliberation and planning in a wanton manner. Therefore, the respondents deserved the penalty of death as awarded by the trial Court. The respondents themselves had not claimed any leniency in the matter of sentence on the ground of minority nor any proof was adduced by them at any stage. The High Court did not advance any justifiable reasons for awarding lessor sentence to the respondents.

5. On the other hand, the learned counsel for the respondents Nos.1 and 2 argued that the prosecution had not been able to prove its case against the respondents beyond a reasonable doubt. The prosecution witnesses were interested and related to the deceased. They were highly inimical towards the convict-respondents. The ocular version did not inspire confidence so as to sustain the capital charge. The respondents were entitled to the benefit of doubt and acquittal.

6. The learned State Counsel supported the impugned judgment by the High Court as to the conviction and reduction of sentence.

7. We have heard the learned counsel for the petitioners in both petitions and the learned State Counsel. The trial Court as well as the High Court after due appreciation of the prosecution evidence, believed the presence and statements of the complainant Muhammad Akram P.W.10 and Mushtaq Ahmed P.W.11 as natural witnesses. Both of them were proved to be going towards the coach stand in order to see Abdul Sattar and others in jail who were involved in the murder case of Ghulam Muhammad, father of the convict-respondent Mushtaq Ahmed. The case was reported with the police promptly. The medical evidence also supported the ocular version of the case. The occurrence took place inside the shop of Ghulam Rasool and the eye-witnesses were standing on the other side of the road as per site plan (Exh.P.A.). The High Court rightly observed that it was not possible for the eye-witnesses from that E distance to say with exactitude as to which of the respondents had fired a fatal shot at the deceased. The High Court awarded lesser sentence to Kashmir respondent for the reason that at the time of recording of his statement under section 342, Cr. P. C. his age was 20/21 years which came to be about 17/18 years at the time of occurrence. The discretion exercised by the High Court in awarding lesser penalty to the respondents was proper and justified in the facts and circumstances of the case, albeit the offence against them stood proved by the prosecution beyond any reasonable doubt. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. These are not fit cases for grant of leave to appeal.

8. For the foregoing reasons, we do not find any merit in these petitions which are dismissed and leave to appeal is refused accordingly. H.B.T./M-133/SC??????????????????????????????????????????????????????????????????????????????? Petition dismissed.